Gauhati High Court
M/S. Ascon & Anr vs The State Of Assam & 3 Ors on 14 December, 2017
Author: Suman Shyam
Bench: Suman Shyam
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM
AND ARUNACHAL PRADESH)
WP(C) 3340 /2017
1. M/s. ASCON, a registered Partnership Firm having its
registered Office at S.G. Commercial Complex, R.N.C.
Road, (Path), Dibrugarh, Post office- Dibrugarh, Police
Station- Dibrugarh, District- Dibrugarh, Assam, PIN-
786003, represented by its Attorney Sri Rajib Borah.
2. Sri Rajib Borah, son of Shri Durgeswar Borah, Resident of
Dillidowania Gaon, Namrup, Post Office- Porbotpur,
Police Station - Namrup, District- Dibrugarh, Assam, PIN-
786623 (Attorney of M/s. ASKON by virtue of Special
Power of Attorney no. 106 dated 21/01/2017)
...........Petitioners
-Versus -
1. The State of Assam, represented by the Commissioner
and Secretary to the Government of Assam, Public
Works Department, Dispur, Guwahati, Kamrup
Metropolitan District, Assam, Pin-781006.
2. The Chief Engineer, Public Works Department (Roads),
Government of Assam, Chandmari, Guwahati-781003.
3. The Additional Chief Engineer, Public Works Department
(Roads), Eastern Zone, Dibrugarh, Assam, Pin-786001.
4. Sri Ranjan Dutta, son of Mahendra Dutta, Resident of
Baipur, Dibrugarh, Post Office- Banipur, Police Station -
Dibrugarh, District - Dibrugarh, Assam, Pin-786003.
..........R espondents
For the Petitioners : Mr. M. Choudhury, Sr. Adv.
Mr. A. Kalita, Adv.
For the Respondents : Mr. D. Mazumdar, AAG, Assam,
Mr. A.C. Borbora, Sr. Adv.
Mr. M. Smit, Adv.
WP(C) 3340/2017- CAV Page 1 of 19
BEFORE
THE HON'BLE MR. JUSTICE SUMAN SHYAM
Date of hearing : 07/11/2017
Date of Judgement : 14/12/2017
JUDGEMENT AND ORDER (CAV)
Heard Mr. M. Choudhury, learned senior counsel assisted by Mr. A. Kalita, learned counsel for the petitioners. I have also heard Mr. D. Mazumdar, learned Additional Advocate General(AAG), Assam, appearing for the State respondents as well as Mr. A.C. Borbora, learned Senior Advocate assisted by Mr. M. Smith, learned counsel appearing for the respondent no. 4.
2. By filing this writ petition, a challenge has been made to the decision of the respondent no. 3 to reject the technical bid submitted by the Writ Petitioner No. 1 and also the consequent decision to award the contract in favour of the respondent No. 4.
3. The facts giving rise to the filing of the present writ petition, briefly stated, are as follows :-
I) The writ petitioner no. 1 is a registered partnership firm and the petitioner no. 2 is its constituted attorney. The petitioner no. 1 firm is a registered Class-IA contractor and is eligible to undertake and execute various contractual works under the PWD, Assam.
II) On 23/02/2017, the respondent no. 3 had issued a Notice Inviting Tender (NIT) inviting bids in two parts, i.e. technical and financial, for awarding contracts in respect of 9 (nine) different packages for maintenance and repairing of road work amounting to Rs. 1385.18 lacs in total.
WP(C) 3340/2017- CAV Page 2 of 19 III) Responding to the NIT dated 23/02/2017, the petitioner no.1 had submitted its bid in respect of package no 9 viz. DIB/ARME/2016-
17/NK/11, i.e. maintenance and repairing of Joypore Faltutulla Road under Naharkatia legislative Assembly Constituency. The approximate value of the package was fixed at Rs. 150.00 lacs.
IV) The Instruction to Bidders (ITB) lays down the terms and conditions for awarding the contracts, according to which, the last date of submission of bids was fixed on 17/03/2017 at 2.00 p.m. The date of opening the technical bids and their evaluation was fixed on 17/03/2017 at 2-30 p.m. and the date and time for opening of the financial bids was fixed at 11.00 a.m. on 24/03/2017.
V) The petitioner no. 1 had submitted its bid in respect of package no. 9 in two parts i.e. technical and financial, within the date and time stipulated for submission of the same. In total, three parties including the writ petitioner no 1, the respondent No. 4 and another contractor viz. Kushal Konwar had submitted their bids for the package No 9.
VI) Although the date and time for opening of the technical bid was fixed at 2-30 p.m. on 17/03/2017, yet, according to the writ petitioners, the same was not done so on the stipulated date and time for reasons not known to them. When the respondent no. 3 had failed to inform the fate of its technical bid despite repeated enquiries made in that regard by the representative of the Petitioner No. 1 firm, a representation was submitted on 01/04/2017 requesting the respondent No.3 to furnish the necessary information relating to status of the tender process. VII) On receipt of the representation dated 01/04/2017, the petitioner no 1 was verbally informed that the bid submitted by it had been rejected on WP(C) 3340/2017- CAV Page 3 of 19 technical ground but the respondent no. 3 did not indicate as to the ground on which the technical bid of the Petitioner No. 1 had been rejected. When repeated enquiries made by the writ petitioners had failed to yield any result, the Petitioner No. 1 had submitted a representation before the Departmental Minister on 09/05/2017 seeking an enquiry into the matter.
VIII) On receipt of the representation dated 09/05/2017, the Departmental Minister had directed an enquiry to be conducted in the matter. Accordingly, a 3 (three) member committee was constituted to look into the matter and the said committee had submitted its report dated 18/04/2017 before the respondent no. 3, inter-alia, mentioning that the technical bids submitted by the petitioner no. 1 and another bidder i.e. Shri Kushal Konwar were found to be technically defective. As per the report dated 18/04/2017, the technical bid of the petitioner No 1 was found to be technically non-responsive due to non-compliance of clauses 4.7 and 4.7(A) of the ITB. Along with the report dated 18/04/2017, the committee had also enclosed the Technical Bid Evaluation report dated 22/03/2017.
IX) In the meantime, the financial bid of the respondent no 4 was opened and a Letter of Acceptance was issued in his favour on 23/03/2017 but since no work order was issued even after a considerable lapse of time, the respondent No.4 had approached this Court by filing WP(C) 2917/2017, which was disposed of by the order dated 22/05/2017 at the motion stage by taking note of the submission of the departmental counsel that work order dated 18/05/2017 has already been issued by WP(C) 3340/2017- CAV Page 4 of 19 the respondent no. 3 in favour of the respondent no. 4.On receipt of the work order the respondent no 4 had commenced execution of the work. X) On 02/06/2017, the petitioner had approached this Court by filing the instant writ petition challenging the decision of the respondent authorities which had resulted in the issuance of the work order in favour of the respondent No 4.
4. The case of the writ petitioners, as projected in the petition, is that the petitioner no 1 had submitted a certificate of the ongoing works which was duly counter signed by the concerned Executive Engineer. As such, the bid of the petitioner no.1 had met the requirement of clauses 4.7 and 4.7A of the ITB and hence, the ground on which its technical bid was rejected was illegal and arbitrary. Since, the writ petitioner no 1 had quoted a rate lower than the respondent no 4 hence, the decision of the authorities to award the contract in favour of the respondent no 4 was not only arbitrary but the same was also contrary to public interest.
5. In the affidavit-in-opposition filed on behalf of the respondent no. 2 i.e. the Chief Engineer, Public Works Department (Roads), Assam, it has been, inter-alia, stated that the petitioner no.1 had failed to furnish a certificate of on-going works in the prescribed format and instead, had merely produced a "Physical Progress Report"
signed by the concerned Executive Engineer, which did not fulfil the requirement of Clause 4.7 and 4.7A of the ITB. On such ground, the bid of the petitioner was held to be technically non-responsive. In his affidavit, the respondent no 2 has also mentioned that earlier, the petitioner no.1 was awarded the routine maintenance work of PMGSY package No. AS0652 but although the work had been completed, yet, the petitioner no 1 had failed to carry out the routine maintenance work as per the terms of the contract.
WP(C) 3340/2017- CAV Page 5 of 19
6. The respondent no. 4 has also contested the writ petition by filing affidavit-in- opposition inter-alia questioning the maintainability of the writ petition on the grounds of delay and laches. While denying any illegality in the process adopted by the respondent authorities in awarding the contract in his favour, the respondent no. 4 has also categorically stated that as on the date of filing this writ petition, about 75-80% of the work had already been completed and the respondent no. 4 had also received payment of an amount of Rs. 76,57,299/-.Therefore, no relief can be granted to the writ petitioners at this distant point of time.
7. Mr. M. Choudhury, learned senior counsel appearing for the petitioner has strenuously argued that the writ petitioner no. 1 had produced the physical progress certificate signed by the concerned Executive Engineer clearly indicating the works which had been carried out by his client and/ or was under progress. Since the progress certificate discloses the relevant information sought by Clause 4.7 of the ITB and the same was also signed by the Executive Engineer of Dibrugarh Rural Division, who is a functionary within the establishment of the respondent no. 3, there was no justification for the respondents to disqualify the petitioners' bid on such technical ground. Mr. Choudhury further submits that in view of the contents of the physical progress certificate submitted by the petitioner, there has been substantive compliance of clauses 4.7 and 4.7(A). Under the circumstances, the decision to reject the petitioners' bid on such flimsy technical ground was wholly arbitrary, discriminatory and therefore, unsustainable in the eye of law.
8. Urging that the entire tender process was carried out in a completely non- transparent manner, Mr. Choudhury has contended that as per the time schedule mentioned in the ITB, the date of opening the financial bid was fixed on 24/03/2017 at 11.00 a.m. Notwithstanding the same, it is the admitted position of fact that the financial bid of the respondent no. 4 was opened on 23/03/2017 i.e. a day before the WP(C) 3340/2017- CAV Page 6 of 19 stipulated date, thereby suggesting in clear terms that the evaluation process had been manipulated so as to extend undue favour to the respondent no. 4. In the above context, Mr. Choudhury has also argued that although there was a duty cast upon the authorities to prepare the minutes of Bid Opening and also to inform all the bidders of the outcome of the evaluation process, no such exercise was carried out in the present case, inasmuch as, the petitioner no 1 was not informed about the rejection of its technical bid at any time prior to the opening of the financial bid of the respondent no. 4 or even thereafter. The aforesaid methodology adopted by the official respondents, according to the learned senior counsel, unequivocally goes to show that the tender process itself was vitiated by complete arbitrariness and lack of transparency.
9. Responding to the plea of delay raised by the contesting respondents, Mr. A. Kalita, learned counsel appearing for the writ petitioners has argued that in the present case since the petitioners were never informed about the outcome of the evaluation process of the technical bid, there was no scope for them to approach this Court at an earlier date. It was only after submission of the representation dated 01/04/2017 that the petitioners came to know about the rejection of their technical bids. But even thereafter, since an enquiry had been ordered by the Departmental Minister, the petitioners had to await the outcome of the said process before approaching this Court. According to Mr. Kalita, the question of delay in a writ petition must be evaluated on the basis of facts-situation of each case and having regard to the facts of the present case, it cannot be said that there has been any delay or laches on the part of the writ petitioners in approaching this Court.
10. Mr. Kalita further submits that even though the respondent no 4 had proceeded with the work during the pendency of the writ petition, if this Court finds that the petitioner has been unduly deprived of the contract, the profit ensuing upon the respondent no. 4 should be forfeited and the same may be awarded to the petitioner WP(C) 3340/2017- CAV Page 7 of 19 no 1 so as to compensate it for the wrongful action of the respondents. In support of his aforesaid argument, the petitioners' counsel has relied upon the following decisions of the Supreme Court.
i) (1991) 3 SCC 273 (Poddar Steel Corporation Vs. Ganesh Engineering Works and others).
ii) 2000(1) GLT 341 (Bidhubhushan Chowdhury and another Vs. Union of India and ors)
iii) 2011 (1) GLT 625 (Dharampal Satyapal Limited and Ors. Vs. Union of India and Anr.)
iv) 2012 (114) BOMLR 2214 (Welspun Projects Ltd. Vs. Mira Bhayander Municipal Corporation)
v) (2005) 8 SCC 438 ( Subhash Projects and Marketing Limited Vs W.B. Power Development Corporation Ltd)
11. Mr. D. Mazumdar, learned AAG, Assam, on the other hand, has argued that clause 4.7 of the ITB provides a formulae for evaluating the bid capacity of the tenderers and from a bare reading of the said clause, it would be apparent that the same is a mandatory tender condition. Therefore, submits Mr. Mazumdar, any bidder who fails to qualify in the said criteria would not be entitled to participate in the tender process. Since the petitioner has admittedly failed to furnish the requisite information in the prescribed format, it is a clear case of non-compliance of the mandatory conditions of clause 4.7 of the ITB. According to Mr. Mazumdar, a mandatory condition of the ITB has to be complied with in letter and spirit and even assuming but not admitting that there has been substantive compliance of the said ITB clause, same would not qualify the writ petitioner No 1 to participate in the tender process.
12. Referring to the statements made in the affidavit-in-opposition filed by the respondent no. 2, the learned AAG submits that the circumstances under which the financial bid opening date had to be advanced from 24/03/2017 to 23/03/2017 has been mentioned in details and those statements have remained un-rebutted. The petitioner no 1 was not informed about the date of opening of the financial bid since WP(C) 3340/2017- CAV Page 8 of 19 there was no necessity under the ITB to intimate the date of opening of the financial bid to those bidders whose technical bid had been rejected. Mr. Mazumdar further submits that since there was no stay order operating in this case, hence, the work has already been completed and the payment due and payable to the respondent no. 4 was also made during the pendency of the writ petition.As such, submits Mr. Mazumdar, the writ petition is also barred by laches and negligence. By referring to the decision of the Supreme Court in the case of Master Marine Services (P) Ltd. Vs. Metcalfe & Hodgkinson (P) Ltd. and another reported in (2005) 6 SCC 138, the learned AAG submits that since the petitioner has failed to explain the delay in approaching this Court and has also failed to deny that they had not submitted the information pertaining to clause 4.7 of the ITB, hence, there is no scope for interference with the work order in the facts of the present case.
13. Mr. A.C. Borobra, learned senior counsel for the respondent no. 4 has vehemently assailed the maintainability of the writ petition on the ground of delay and laches by contending that, the petitioners having failed to approach this Court at an appropriate stage, they have disqualified themselves from availing any relief in this writ petition. Mr. Borbora also submits that his client has already executed the work and has received payment in respect thereof. Even if this court holds that the ground for rejection of the technical bid of the writ petitioners were unsustainable in law, even then, no relief can be granted to the petitioners at this belated stage.
14. Mr. Borbora has also contested the submission of the petitioners counsel on the merit of the case by contending that this is not a case where the technical bid of the petitioner nos. 1 had been rejected arbitrarily. Since the right available to a tenderer in the matter of Government contract is limited to protection from arbitrary and discriminatory treatment alone, hence, in the absence of any proof of arbitrariness in the decision making process, the petitioners do not have any case warranting WP(C) 3340/2017- CAV Page 9 of 19 interference from this Court. In support of his aforesaid argument, Mr. Borbora has relied upon the following decision of the Supreme Court.
i) (2011) 7 SCC 493 (ITC Ltd. Vs. State of Uttar Pradesh and others);
ii) (2011) 5 SCC 607 (Shankara Cooperative Housing Society Ltd. Vs. M. Prabhakar and others); and
iii) (1975) 4 SCC 285 (Aflatoon and Ors. Vs. Lt. Governor of Delhi & Ors).
15. I have considered the submissions advanced by the learned counsel for the parties and have also perused the materials available on record.With the consent of the learned counsel for the parties, the writ petition is being taken up for final disposal at the stage of admission hearing.
16. Since impeachment of the writ petition has been sought on the ground of delay and laches, let me first deal with the question of maintainability of the writ petition.
17. Through their pleadings, the respondents have taken a categorical plea that the writ petitioners have failed to take proper legal action in the matter at the stage when their technical bid was rejected and therefore, are guilty of delay and laches. It is to be noted here-in that the date fixed for opening the technical bids was 17.03.2017 and the financial bid opening date was fixed on 24.03.2017. It is the case of the writ petitioners that although the technical bids were opened on 17.03.2017, those were not evaluated on that day nor were the bidders intimated about the reason for not doing so. The writ petitioners have made an attempt to explain the delay in approaching this Court by taking the plea that due to the pendency of the departmental enquiry ordered by the Minister, there was some delay in filing the writ petition.
18. Record reveals that the petitioners had submitted a representation before the Departmental Minister on 09.05.2017, i.e. after a lapse of more than a month from the date fixed for opening of the financial bids but even in the said representation, there is no prayer to halt the process of awarding the contract to the other bidder(s).There is WP(C) 3340/2017- CAV Page 10 of 19 no convincing explanation in the writ petition as to why the petitioner no. 1 had to wait till 09.05.2017 for seeking any enquiry in the matter relating to rejection of its technical bid when the date fixed for opening the financial bid was 24.03.2017.Even the representation dated 01.04.2017 was filed about two weeks after the date fixed for opening the financial bids.
19. Not only that, after completion of the departmental enquiry, the three member committee had submitted a report dated 18.04.2017 affirming the decision of the Bid Evaluation Committee in rejecting the technical bid of the petitioner no 1 on the abovementioned ground. But surprisingly, the petitioners have not challenged the adverse finding recorded in the said Enquiry report as well.
20. Since the ITB prescribed a definite time schedule for evaluation of the technical and financial bids, therefore, the cause of action for the petitioners to approach this court had evidently arisen on 24.03.2017 if not on 17.03.2017. But the petitioner no. 1 did not approach this court at that stage. If the petitioner no.1 was seriously aggrieved in the matter, it ought to have been more vigilant and approached the Court immediately on accrual of the cause of action. But the writ petition was filed only on 02/06/2017 i.e. more than two months after the date when the cause of action had arisen, by which time more than 75% of the work had been executed by the respondent no 4 under a concluded contract. Since, the petitioners in this case are challenging the decision making process related to the evaluation of the technical bid, there was no legal hurdle for them to approach this court without awaiting the outcome of the departmental enquiry.
21. In a competitive bidding of this nature involving bids submitted in two parts, the eligibility of the bidders are evaluated both on the technical criteria as well as on the strength of the financial offers. The question of considering the financial bid would arise only when the bids are found to be technically valid. Therefore, the evaluation WP(C) 3340/2017- CAV Page 11 of 19 process proceeds on a rapidly changing backdrop whereby, each phase of the tender process constitutes a distinct stage signifying the creation and / or extinguishment of rights of the bidders. It would, therefore, be difficult to accept that hardcore businessman having sufficient experience and expertise in such bidding process would remain silent in the matter even after the expiry of the date of opening the financial bids merely because the authorities had failed to inform about the outcome of the evaluation of the technical bid. An experienced contractor such as the writ petitioner no. 1 is expected to be well conversant with implications of each stage of the tender evaluation process and would normally be extremely alert in protecting its rights and interest at every stage of the tender process by seeking prompt and appropriate legal remedy as and when the occasion arises.
22. In the present case, although the financial bid of the petitioner no. 1 was not opened on 24.03.2017 as per the notified tender schedule, no legal action was taken by it to protect its interest in the matter until 02.06.2017 despite having knowledge about opening of the technical bids on 17.03.2017. It is, therefore, evident that the petitioner no 1 had been fence sitting in the matter. It is no doubt correct that the petitioner no 1 had submitted a representation on 09.05.2017 seeking an enquiry in the matter, but in the interregnum, a right to execute the contract had accrued in favour of the respondent no. 4 due to the issuance of the Letter of Acceptance dated 23.03.2017 which had culminated in the work order dated 18.05.2017. Having regard to the cumulative facts of the case, the conduct of the writ petitioners in their delayed approach to this court goes to indicate that the petitioner no 1 was well aware of the deficiency in its technical bid and was merely taking a chance in the matter by submitting the representation after representation.
23. It is fairly well settled that the law of limitation would not have strict application in a writ proceeding and delay is not to be applied as obdurate rule to deny relief, if WP(C) 3340/2017- CAV Page 12 of 19 otherwise allowable. But law is equally settled that if delay in approaching the court gives rise to parallel right being created in favour of a third party, then relief can be denied on the ground of delay. What would constitute delay and laches in a given case would depend on the facts and circumstances of each case and no inflexible rule of interpretation can be laid down in that regard. However, in a matter involving commercial interest of the parties, the Court would have to tread with caution not to entertain a stale claim particularly when the same would lead to trampling upon the rights of the adversary created under a concluded contract.
24. In the case of Dharam Pal Satyapal Limited and Others (supra) this court had observed that delay is not an irremediable vitiating malady acknowledged by the rule of law eventuating refusal of relief though otherwise justified on merit and it is a matter of discretion exercisable in the facts of a given case. It was, however, observed that no premium can be extended to a party guilty of inaction and negligence resulting in conferment and consolidation of rights on the adversary.
25. In the case of Shiba Shankar Mahapartra and Ors vs State of Orissa (supra) the Hon'ble Supreme Court has held that fence sitters cannot be allowed to raise the dispute or challenge the validity of an order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing the relief is on the ground of delay and laches in approaching the court. The Supreme Court has further observed that the court exercising public law jurisdiction does not encourage agitation of stale claims where the right of the third party crystallizes in the interregnum.
26. In the case in hand, the petitioner's grievance relates to rejection of its technical bid. In the facts and circumstances of the case, if the plea raised by the petitioners are to be accepted, the ultimate relief that could be granted under the law and equity was for this court to direct the authorities to reconsider the technical bid submitted by the petitioner no. 1 and to open its financial bid. But such a relief would WP(C) 3340/2017- CAV Page 13 of 19 be permissible only at a stage when the tender process was yet to be concluded and when no right had crystallized in favour of the successful bidder. Entertaining such a prayer after conclusion of the tender process would amount to setting the clock back which would be impermissible in the eye of law.
27. As would be evident from the facts alluded above, the Letter of Acceptance and the work order were issued in favour of the respondent no 4 well before the writ petition was filed and therefore, on the basis of the said orders, a right to execute the contract had accrued in favour of the private respondent. From a careful analysis of the facts and circumstances of the case, it cannot be said that the petitioners were prevented from approaching this court at an earlier date due to factors beyond their control. Therefore, this Court is of the opinion that present is a clear case where the petitioners are guilty of laches and negligence and hence are not entitled to any relief on such count alone.
28. Coming to the merit of the case, the basic controversy in this petition revolves around the interpretation of clause 4.7 of the ITB. As such, clause 4.7 of the ITB is reproduced herein below for ready reference :-
"4.7. Bidders who meet the minimum qualification criteria will be qualified only if their available bid capacity at the expected time of bidding is more than the total bid value. The available capacity will be calculated as under :
Assessed available bid capacity = (A*N*2-B) Where, A- Maximum value of civil engineering works executed in any one year during the last five years (updated to the price level of the year indicated in Appendix) rate of inflation may be taken as 5% per year taking into account the completed as well as works in progress. N- Number of years prescribed for completion of the works for which bids are invited.
B- Value (updated to the price level of the year indicated in Appendix) of existing commitments and ongoing works to be completed during WP(C) 3340/2017- CAV Page 14 of 19 the next 14 months (period of completion of works for which bids are invited).
Note:1- The statements showing the value of existing commitments and ongoing works as well as the stipulated period of completion remaining for each of the works listed should be countersigned by the Engineer in Charge, not below the rank of an Executive Engineer or equivalent."
29. A reading of clause 4.7 of the ITB goes to show that the bidders who meet the minimum qualification criteria would only be treated as qualified to participate in the bidding process meaning thereby, that the bids which do not meet the requirement of clause 4.7 shall be rejected. Since, non-fulfilment of clause 4.7 would be visited with adverse civil consequences, hence, the said clause has to be treated as an essential tender condition.
30. The tender document prescribes a format for furnishing information related to clause 4.7 of the ITB. As per the said format, the bidders were required to furnish information in a tabular form, indicating the "Description of Work", "Place and State", "Contract No.", " Name and Address of Employer", " Value of Contract(Rs Crores)", "Stipulated period of completion", " Value of work remaining to be complete" and "Anticipated date of Completion". In the said form it has also be indicated that the bidder is to "attach certificate(s) from the Engineer(s)-in-charge". The information furnished by the bidders in such format is required for assessing the eligibility of the bidder to participate in the tender process as per the formula indicated in clause 4.7 of the ITB.
31. It is the admitted position of fact that the writ petitioner no. 1 had not furnished the aforesaid information in the prescribed format. Instead, the petitioner no 1 has submitted a "progress certificate" issued by the Executive Engineer, PWD, Dibrugarh Rural Road Division indicating that the petitioner no 1 has three ongoing works under the Division. Although the progress certificate submitted by the WP(C) 3340/2017- CAV Page 15 of 19 petitioners does furnish substantial information about the ongoing works, yet, it appears that the said certificate did not provide all the information in precise terms as called for in the prescribed form. Moreover, although the progress certificate has been signed by the Executive Engineer yet, it is not in dispute that the petitioner no 1 did not attached the certificate from the Engineer-in-charge as per requirement of clause 4.7 of the ITB.
32. In the case of G.J. Fernandez Vs. State of Karnataka and others reported in AIR 1990 SC 958, the Supreme Court has observed that the tenderers that do not meet the essential conditions, can be precluded from consideration.
33. In the case of Maa Binda Express Carrier Vs. North-East Frontier Railway reported in (2014) 3 SCC 760 the Supreme Court had the occasion to consider several earlier decisions of the court on the scope of judicial review in the matter of award of Government contracts, and has held that the bidders participating in the tender process cannot insist that their tender should be accepted simply because a given tender is highest or lowest depending upon whether the contract is for sale of public property or execution of work on behalf of the Government. All that the participating bidders are entitled to is a fair, equal and non-discriminatory treatment in the matter of evaluation of their tenders. What is necessary is that the Government or its agencies must act reasonably and fairly and to that extent, the tenderer has an enforceable right.
34. Again, in the case of Central Coalfields Limited and Others vs. SLL-SML (Joint Venture Consortium) and Others, reported in (2016) 8 SCC 622 the supreme Court has observed that the decision to accept or reject a particular bid should be looked into not only from the point of view of the unsuccessful bidder but also from the point of view of the employer. It has been observed that whether a clause in the NIT is essential or not is a matter that should be left to the decision of the employer and if WP(C) 3340/2017- CAV Page 16 of 19 the decision making process is found to be fair and transparent, the writ Court, in exercise of power of judicial review would not interfere with such a decision.
35. As noted above, in the present case, the petitioners have admittedly failed to submit the information as per the prescribed format in terms of an essential tender condition and there is no proper explanation as to the reason for non-furnishing of the certificate from the Engineer-in-charge. From the materials available on record, it is established beyond doubt that the writ petitioner no 1 had not furnished the certificate from the Engineer-in-charge along with its tender as per requirement of the related clause. Clause 4.7 of the ITB being an essential condition of tender, it was obligatory on the part of the respondent authorities also to strictly enforce the same. Therefore, any bid submitted by tenderers which was not in conformity with the essential tender condition could not have been accepted by the Evaluation Committee since the same would be in violation of the mandatory conditions of the ITB. As such, the decision of the Bid Evaluation Committee in rejecting the technical bid submitted by the petitioner no 1 on the ground of non-fulfilment of clause 4.7 and 4.7 A of the ITB, in the opinion of this court, cannot be held to be arbitrary or illegal.
36. In the case of Bidhu Bhushan Chowdhury and another (supra) the dispute was pertaining to the form of deposit of the Earnest Money which was tendered in the name of the wrong person. Although the bank, which stood as the guarantor, had subsequently clarified the matter, yet, the bid was rejected by the Railway Authorities. It was in that context that this court had held that Earnest Money is a guarantee that the contract would be fulfilled and the said defect was of curable nature which did not affect the substance of the tender. In the aforesaid decision this court had further observed that if there was any doubt in the mind of the authorities it was open for it to ask for further assurance from the bank. By referring to the said decision, Mr Choudhury has contended that in the event of any doubt, the authorities could have WP(C) 3340/2017- CAV Page 17 of 19 asked for a clarification from the concerned Executive Engineer, which was a permissible recourse under the ITB. The said submission of the petitioner's counsel cannot be accepted by this court on account of the fact non-fulfilment of an essential tender condition cannot be held to be a curable defect. Unlike in the present case, the defect in the tender in the case of Bidhu Bhushan Chowdhury and another (supra) was held to be of curable nature and hence, the ratio of the said decision would not have any application in the facts of the present case.
37. This is not a case where any fraud or collusion on the part of the respondent no 4 in bagging the contract has been alleged or established. There is also nothing on record to show that the respondent no 4 had secured the work by any dubious means. As a matter of fact, the respondent no 4 did not appear to have any role to play in the rejection of the petitioners' technical bid. Even assuming that two views were possible on the question of validity of the technical bid submitted by the petitioner no 1 and that its technical bid was mistakenly rejected by the authorities, even then, the respondent no. 4 cannot be held responsible for any loss suffered by the petitioner no. 1 on such count. Once, the contract has been concluded, in the facts of the case, it would not only be highly inequitable but even legally impermissible for this Court to order forfeiture of the profit component earned by the respondent no 4 in favour of the petitioner no. 1.
38. In the case of Subhash Projects and Marketing Limited(supra) relied upon by Mr Kalita, the Division bench of the Calcutta High Court had found that the contract was wrongfully awarded to the contractor by employing dubious means and under undue pressure from the Minister. Taking note of the facts under which the contract was awarded in favour of the beneficiary (Subhash Projects and Marketing Limited) the Supreme Court had affirmed the decision of the Division Bench of the High Court of Calcutta thereby permitting disgorgement of the profit of the party securing the WP(C) 3340/2017- CAV Page 18 of 19 contract by dubious means. However, as noted above, this is not a case where the respondent no 4 had adopted any dubious means to secure the contract. Rather, he had emerged as the valid highest bidder in the evaluation process resulting into issuance of the letter of Acceptance dated 23.03.2017. The mere fact that the financial bid opening date was advance by a day, cannot per se, have a vitiating effect on the work order, more so when the petitioners have failed to establish any malafide on the part of the respondent no 1 to 3 on such count. The matter, however, would have been entirely different if it was found that the decision making process has been influenced by fraud, collusion or undue influence or if it turned out to be a case where the respondent no. 4 has secured the contract by employing dubious means, in which event, it would have been open for the petitioner no. 1 to claim compensation for being wrongfully deprived of the fruits of the contract, which is not the case in hand. As such, I am of the view that the ratio of the law laid down by the Supreme Court in the case Subhash Projects and Marketing Limited(supra), as relied upon by Mr Kalita, would not have any application in the facts and circumstances of the present case.
39. For the reasons stated here-in-above, this Court is of the considered opinion that the petitioners have failed to make out a case even on merit, warranting interference by this Court. The writ petition is, therefore, held to be devoid of any merit and is accordingly dismissed.
Parties to bear their own cost.
JUDGE Sukhamay WP(C) 3340/2017- CAV Page 19 of 19