Gauhati High Court
M/S Singhi Infrapower Projects Pvt. Ltd vs M/S Natsakee Incorporation And 4 Ors on 1 April, 2021
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/13
GAHC010047732021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/647/2021
M/S SINGHI INFRAPOWER PROJECTS PVT. LTD.
SINGHI HOUSE, RAJA MAIDAM ROAD, JORHAT, ASSAM 785001, REP. BY
ITS POWER OF ATTORNEY HOLDER SRI AJNISH KUMAR RAI
VERSUS
M/S NATSAKEE INCORPORATION AND 4 ORS.
A PROPRIETORSHIP FIRM HAVING ITS OFFICE AT 414 PURBI COMPLEX,
A.T. ROAD, GHY- 1, ASSAM, REP. BY ITS AUTHORIZED REPRESENTATIVE
SRI AKASH GARG
2:THE STATEOF ASSAM
REP. BY THE COMMISSIONER
PANCHAYAT AND RURAL DEVELOPMENT
ASSAM
PANJABARI
GHY-17
3:THE KAMRUP ZILA PARISHAD
PANBAZAR
GUWAHATI 01
REPRESENTED BY ITS CHIEF EXECUTIVE.
4:THE MEMBER SECY.
DIST. LEVEL COMMITTEE ON SPMRM
HAJO RURBAN CLUSTER CUM THE CHIEF EXECUTIVE OFFICER KAMRUP
ZILLA PARISHAD
PANBAZAR
GUWAHATI 01
5:TENDER COMMITTEE
Page No.# 2/13
C/O THE KAMRUP ZILLA PARISHAD
PANBAZAR
GUWAHATI 0
Advocate for the Petitioner : MR. I CHOWDHURY SR ADV
Advocate for the Respondent : MR. R DUBEY
Linked Case : WP(C)/1161/2021
M/S NATSAKEE INCORPORATION
A PROPRIETORSHIP FIRM HAVING ITS OFFICE AT 414 PURBI COMPLEX
A.T. ROAD
GUWAHATI 781001
ASSAM
REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE SRI AKASH GARG
VERSUS
THE STATE OF ASSAM AND 4 ORS
REPRESENTED BY THE COMMISSIONER
PANCHAYAT AND RURAL DEVELOPMENT
ASSAM
PANJABARI
GUWAHATI 17
2:THE KAMRUP ZILA PARISHAD
PANBAZAR
GUWAHATI 01
REPRESENTED BY ITS CHIEF EXECUTIVE.
3:THE MEMBER SECY.
DIST. LEVEL COMMITTEE ON SPMRM
HAJO RURBAN CLUSTER CUM THE CHIEF EXECUTIVE OFFICER KAMRUP
ZILLA PARISHAD
PANBAZAR
GUWAHATI 01
4:TENDER COMMITTEE
C/O THE KAMRUP ZILLA PARISHAD
PANBAZAR
Page No.# 3/13
GUWAHATI 01
5:M/S SINGHI INFRAPOWER PROJECTS PVT. LTD.
SINGHI HOUSE
RAJA MAIDAM ROAD
JORHAT
ASSAM 785001
------------
Advocate for : MR. R DUBEY
Advocate for : SC
PNRD appearing for THE STATE OF ASSAM AND 4 ORS
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 01-04-2021 By a notice inviting tender (NIT) dated 26.08.2020, the respondent no. 3 i.e. the Member Secretary, District Level Committee on SPMRM, Hajo Rurban Cluster cum the Chief Executive Officer, Kamrup Zila Parishad, Guwahati invited bids from eligible bidders for participation in a competitive bidding process for the work, "Supply, Installation, Testing and Commissioning including 5 years Operation, Comprehensive Warranty and Maintenance of LED based Solar Street Lighting System at different locations in Hajo cluster under SPMRM Scheme" ('the subject-work', in short). The last date of submission of bid was 11.09.2020, up to 16-00 hours. As per the NIT, the techno-commercial bid was to be submitted online and a copy of the same was also to be submitted at the Tender Drop Box. The price bid was to be submitted online only in the prescribed format. The NIT mentioned that the date of opening of the Techno-Commercial Bid (except Price Bid) was scheduled on 15.09.2020 at 15-00 hours and the bids would be opened in presence of the bidders' representatives. The date of opening of price bids would be intimated later.
1.1. Responding to the said NIT, a total of 10 nos. of bidders including the petitioner and the respondent no. 5, submitted their bids on or before the last date of submission. Technical bids of all the 10 bidders were opened on the scheduled date.
1.2. After opening of price bids, a comparative statement was prepared and having Page No.# 4/13 found the price bid of one bidder below 10% of the estimated cost of the bid, the said bidder was declared non-responsive. After evaluation of the other price bids, the 4 (four) nos. of bidders were found to have quoted the same price i.e. Rs. 36,900/-. The Tender Evaluation Committee in its meeting held on 08.10.2020 considered the bids of those 4 (four) lowest quoted bidders and placed the ranks of those 4 bidders purportedly in terms of the ranking procedure prescribed in the bid document. The petitioner was accorded the ranking of L2 whereas the respondent no. 5 was accorded the ranking of L1. The other two bidders were ranked L3 and L4 respectively.
1.3. After according such rankings, the Bid Evaluation Committee decided to award 75% of the total tender capacity of the bid to the respondent no. 5 while holding that the petitioner was entitled to get awarded with 25% of the total tender capacity at L1 rate as per Procurement Preference Policy of Assam and the provision of the NIT.
2. Aggrieved by and dissatisfied with such ranking of L2 and on being awarded only 25% of the total tender capacity of the bid, the petitioner has preferred the present writ petition under Article 226 of the Constitution of India seeking, inter-alia, quashing and setting aside of the impugned decision of the respondent authorities for holding the respondent no. 5 as L1 bidder and for awarding 75% of the total tender capacity of the bid in favour of the respondent no. 5 while declaring the petitioner as L2 bidder and awarding only 25% of the total tender capacity of the bid and it has also sought for a direction to the respondent authorities to award the entire 100% of the total tender capacity of the bid in favour of the petitioner.
3. I have heard Mr. R. Dubey, learned counsel for the petitioner; Mr. M. Nath, learned Standing Counsel, Panchayat and Rural Development (P&RD) Department for the respondent nos. 1-4; and Mr. I. Chowdhury, learned Senior Counsel assisted by Mr. S. Biswakarma, learned counsel for the respondent no. 5.
4. It has been submitted by the learned counsel for the parties that though an interlocutory application, I.A.(Civil) no. 647/2021 has been filed on behalf of respondent no. 5 seeking vacation/modification/alteration of the interim order dated 22.01.2021, in view of Page No.# 5/13 production of the relevant records, the entire writ petition may be taken up along with the interlocutory application for adjudication on the basis of the records placed before the Court. Mr. Chowdhury has submitted that the interlocutory application the respondent no. 5 has preferred, may be treated as a counter affidavit on behalf of the respondent no. 5. Accordingly, the writ petition is taken up for adjudication at the admission stage.
5. Mr. Dubey has submitted that the petitioner, a proprietorship firm, is a Medium and Small Enterprise (MSE) Unit under the Micro, Small and Medium Enterprises Development Act, 2006 (MSME Act) and, as such, it is entitled to all the protections and privileges entitled to an MSE Unit under the various policies of the Central Government as well as the State Government and also under the MSME Act. It is his further case that the respondent no. 5 is not an MSE unit and in a competitive bidding process, the petitioner being a MSE unit and having quoted the same bid price like that of a non-MSE Unit, has to be accorded all the protections and privileges. In the case in hand, both the petitioner and the respondent no. 5 along with two others had quoted the same bid price for the subject-work but the petitioner firm has been discriminated on the ground of having a lower Minimum Average Annual Turnover (MAAT) value. By referring to Clause 1.3.3 and Clause 1.3.4 in the bid document, he has submitted that if both the Clauses are read together it would emerge that if an MSE unit has quoted equal to the bid of a non-MSE unit priority has to be given to the MSE Unit. In such scenario, he submits that the petitioner firm should have been awarded with the entire 100% of the total tender capacity of the bid.
6. Mr. Nath, learned Standing Counsel, P&RD Department for the respondent nos. 1-4 has submitted that the bids of all the bidders were evaluated strictly in accordance with the procedure prescribed in the bid document. It is his further submission that the petitioner firm had participated after being aware of all the terms and conditions in the bid document wherein the procedure for awarding the work as per the rankings had been clearly specified. According to him, there was no deviation from the terms and conditions prescribed in the bid document while evaluating the bids of the bidders and the petitioner firm was rightly accorded L2 rank. Interpretation of the Clause 1.3.3 and Clause 1.3.4 in the manner sought to be advanced by the petitioner is not tenable as there is no ambiguity in those clauses.
Page No.# 6/13
7. Mr. Chowdhury, learned Senior Counsel appearing for respondent no. 5 before submitting on merits has pointed out that the financial bids were opened on 09.12.2020 and the writ petition was filed on 17.02.2021. He has submitted that subsequent to the rankings accorded to the bidders by the Bid Evaluation Committee on 09.12.2020, the petitioner submitted a representation on 09.12.2020 itself by raising the same contentions as have been raised in the present writ petition. The tendering authority had considered all the issues raised by the petitioner therein and thereafter, disposed of the said representation by a reasoned order on 22.01.2021 wherein the tendering authority had dealt with all the issues raised by the petitioner elaborately as to why it declined to award 100% of the total tender capacity of the bid to the petitioner. It is submitted by him that the said order dated 22.01.2021 has not been put to challenge. He has further submitted that as per sub-clause
(a) of Clause 1.3.3 of the bid document, the price bids of all the bidders irrespective of the fact as to whether a bidder was an MSE unit or a non-MSE unit, had to be considered and treated equally and to be ranked in an ascending order in the manner specified therein. Since a mechanism had already been put in place in the bid document by which the rankings were to be made amongst the bidders if the quoted price of two or more bidders were found equal, he has submitted that in such scenario, it was MAAT (Minimum Average Annual Turnover) of the bidder which would clinch the issue. Thus, he submits, it is not open for the petitioner now to say that he has become L1 by virtue of being an MSE unit.
8. I have considered the submissions of the learned counsel for the parties and also perused the materials placed on record including the records placed by the learned Standing Counsel, P&RD Department.
9. The issue raised in this petition is confined to Clause 1.3.3 and Clause 1.3.4 whereby the procedure for selection of successful bidder has been laid down. It has further provided for the procedure as to how the rankings like L1, L2, L3, etc. are to be accorded to the bidders in case the quoted prices between two or more bidders are found to be equal. It transpires that the MAAT bears relevance in giving the rankings. As per Clause 1.1.1, the Minimum Average Annual Turnover (MAAT) of the bidder is to be calculated on the basis of last three audited financial years (i.e. FY 2016-2017, 2017-2018 and 2018-2019) which Page No.# 7/13 should be Rs. 2.0 Crore on standalone basis. As the said two clauses i.e. Clause 1.3.3 and Clause 1.3.4 are of utmost import, the same are quoted hereunder for ready reference :
"1.3.3 SELECTION OF SUCCESSFUL BIDDER :
a. Based on the quoted price by the bidders, the Member Secretary, District Level Committee on SPMRM, Hajo Rurban Cluster cum Chief Executive Officer, Kamrup Zila Parishad, Panbazar, Guwahati-01 shall arrange the bids in the ascending order of ranking i.e. L1, L2, L3, _ _ _ (L1 being the lowest quoted bidder). In case of tie in the quoted price among two or more bidders, then the ranking of the bidder shall be arranged according to their MAAT value :
Bidders Quoted Price MAAT (Rs. Lakh) Ranking
B1 38,900/- 100 L1
B2 38,900/ 90 L2
B3 38,900/ 80 L3
B4 38,900/ 70 L4
B5 38,900/ 60 L5
b. In Case, a non-MSE bidder holds L1 rate and one or more MSE bidder(s) quote in the range of (L1+L2x20%), then the Member Secretary, District Level Committee on SPMRM, Hajo Rurban Cluster cum Chief Executive Officer, Kamrup Zila Parishad, Panbazar, Guwahati-01 shall arrange the bids amongst the MSE bidder (s) in the ascending order M1, M2, M3, _ _ _ (M1 being the lowest MSE quoted bidder) For example;
Non MSEs have quoted the rates are :
x. Rs. 100.00 (L1) y. Rs. 102.00 z. Rs. 105.00 Eligible MSE quoted rates in the bidding process are:
a. Rs. 120.00
b. Rs. 117.00
Page No.# 8/13
c. Rs. 115.00 (Lowest)
Price range : L1 + 20% of L1 = Rs. 100 + Rs. 20 = Rs. 120.00 The ascending order amongst the MSE bidders are c, b, a (i.e., M1, M2, M3) In case of tie in the quoted price among two or more MSE bids, then the ranking of the bidder shall be arranged according to their MAAT value: For example :
Bidders Quoted Price MAAT (Rs. Lakh) Ranking
B1 44,280/- 100 M1
B2 44,280/ 90 M2
B3 44,280/ 80 M3
B4 44,280/ 70 M4
B5 44,280/ 60 M5
1.3.4. AWARD CAPACITY :
a. In case, a non-MSE bidder holds L1 rate and one or more MSE bidder (s) quote in the range of (L1+L1x20%) as above, the lowest bidder among the MSE bidders falling in the range of (L1+L1x20%), shall be entitled to get award 25% of the bid quantity at L1 rate; other 75% of the lot shall be awarded to non-MSE L1 bidder. In case, first MSE bidder refuses to execute the work then award shall be offered to the next higher MSE bidder which price is fall in the range of (L1+L1x20%) at L1 rate.
b. If in any case, an MSE bidder holds L1 rate he shall be entitled to get 100% award of the tender quantity."
10. The Bid Evaluation Committee after evaluation of the bids had prepared a comparative statement of the price bids on the basis of the parameters stated therein. As the bids of all the 10 bidders were found to be evaluated in the comparative statement, the same is extracted hereunder for ready reference :
Page No.# 9/13 Comparative Statement of the Price Bids Tender ID : 2020_PNRD_18517_1 Name of Work : Supply, Installation, Testing and Commissioning including 5 years Operation, Comprehensive Warranty and Maintenance of LED based Solar Street lighting systems at different locations in the State of Assam Applicable for MSE Bidder Percentage increase/ decrease of Responsive / MSE / Quoted price estimated Non *MAAT Rank of Sl.N Non criteria for MSE Rank of MSE Name of Bidder Supply of cost @ Rs. Responsive (Rs. the o. MSE Erection & bidder should < bidder within MSE Bidder Materials CMC for 5 41000.00 as per Bid Cr.) Bidder bidder Commissioning Total = (L1+L2*20%) the price Qualify/Not inclusive of Years (upto 5 Document inclusive of all Amount decimal i.e., Rs. range Qualify for award all applicable inclusive of applicable taxes (INR) places) 44280.00 where (L1+L2*20% of 25% of the taxes all applicable (INR/ Unit) L1 rate of Rs. ) i.e., Rs. tender value (INR/Unit) taxes 36,900.00 for 44280.00 (INR/Unit) Non MSE bidder 1 M/s Natsakee MSE 34650.00 1306.00 944.00 36900.00 -10.00000% Responsive 9.74 L2 36900.00 M1 Qualify Incorporation 2 M/s Purbanchal Non-
36074.86 589.15 236.00 36900.01 -9.99998% Responsive 37.49 L5
Enterprise MSE
M/s TATRARI
3
ELECTRICALS Non-
35469.84 840.16 590.00 36900.00 -10.00000% Responsive 4.396 L3
AND TRADERS JV MSE
AXOM URJA
4
M/s DYNAMIC
MSE 33600.00 2950.00 2360.00 38910.00 -5.09756% Responsive 9.95 L8 38910.00 M2 Not Qualify
POWERS
5 Non-
M/s D.S. Non-
MSE 26961.01 2699.99 2950.00 32611.00 -20.46098% 3.085 Responsiv
Responsive
Electricals e
M/s Genii
6
Engineering And Non-
31395.00 4073.36 3481.00 38949.36 -5.00156% Responsive 24.026 L9
Services Private MSE
Limited
M/s SINGHI
INFRAPOWER
PROJECTS
7
PRIVATE LIMITED Non-
33122.25 1417.75 2360.00 36900.00 -10.00000% Responsive 35.14 L1
JV M/s SUNNOVA MSE
ENERGY
SOLUTIONS PVT.
LTD
8 M/s SAINIK
Non-
INDUSTRIES 30975.00 5682.88 1799.50 38457.38 -6.20151% Responsive 63.236 L7
MSE
PRIVATE LIMITED
9
Non-
M/s ARM GROUP 24500.00 6200.00 6200.00 36900.00 -10.00000% Responsive 3.266 L4
MSE
10
M/s SURYA Non-
31500.00 4720.00 1770.00 37990.00 -7.34146% Responsive 50.56 L6
ROSHNI LIMITED MSE
11. As could be seen from the above comparative statement, 4 bidders had quoted same price i.e. Rs. 36,900/-. On the basis of the comparative statement of the price bids, the Bid Evaluation Committee in its meeting held on 08.12.2020 had prepared the rankings. On the basis of the said comparative statement, the Bid Evaluation Committee in its meeting held on 08.12.2020 had ranked the said four bidders and thereafter, awarded the petitioner 25% of the total tendered capacity of the bid and 75% of the total tender capacity to the respondent no. 5. It would be apt to quote the relevant portions of the Minutes of the Bid Evaluation Committee hereunder :
Page No.# 10/13 "Minutes of Tender Committee meeting held on 08/12/2020 in the Conference Hall, O/o the Deputy Commissioner, Kamrup Dist., Amingaon, Guwahati-31 The Tender Committee (TC) has concurred to the findings submitted by the Technical Member and approved the following :
(i) As per the CS of price bid i.e. Annexure-I, M/s D.S. Electricals quoted the lowest value of Rs. 32611.0 which is -20.46098% of estimated cost of Rs. 41000.00. The bidder is non-responsive according to tender clause No. 1.3.2 which states that the quoted price should be within ±10% of the estimated price.
(ii) As per Annexure-I, four bidders have quoted the permissible lowest value (within ±10% of estimated value) of Rs. 36900.00. As per Clause No. 1.3.3 (a) in case of tie in the quoted price among two or more bidders, then the ranking of the bidder shall be arranged according to their MAAT value and found as tabulated below:
Bidders Quoted Price MAAT (Rs. Lakh) Ranking
M/s SINGHI INFRAPOWER
PROJECTS PRIVATE LIMITED JV
36,900/- 35.14 L1
M/s SUNNOVA ENERGY
SOLUTIONS PVT. LTD.
M/s Natsakee Incorporation 36,900/- 9.74 L2
M/s TATRARI ELECTRICALS AND TRADERS
36,900/- 4,396 L3
JV AXOM URJA
M/s ARM GROUP 63,900/- 3,266 L4
(iii) Again as per clause no. 1.3.3 (b) in case of tie in the quoted price (within L1+L1x20% range) among two or more MSE bidders, then the ranking of the bidder shall be arranged according to their MAAT value. According to Annexure-I Bidders Quoted Price MAAT (Rs. Lakh) Ranking M/s Natsakee Incorporation 36,900/- 9.74 M1 M/s DYNAMIC POWERS 38,910/- 9.95 M2
(iv) M/s Singhi Infrapower Projects Pvt. Ltd., Singhi House, Raja Maidam Road, Page No.# 11/13 Jorhat (Non-MSE) is the L1 bidder based on the lowest quoted rate of Rs.
36,900.00 per unit (Rupees Thirty Six Thousand Nine Hundred only) by the bidder and is entitled to get award of 75% of the total tendered capacity of the bid.
(v) M/s Natsakee Incorporation, A.T. road, Guwahati the MSE L1 bidder based on the quoted rate of Rs. 36,900/- per unit (Rupees Thirty Six Thousand Nine Hundred only) which is L1+0% above the L1 rate quoted by the Non-MSE L1 bidder and falls within the preference price band L1+20%. Hence, M/s Natsakee Incorporation. A.T. Road, Guwahati is entitled to get award of 25% of the total tendered capacity at L1 rate as per the Procurement Preference Policy of Assam and the provision of the NIT."
12. The bid document has mentioned the Estimated Unit Cost of the System as Rs. 41,000/-. The bid document in Clause 1.3.2 has further mentioned that the price shall be quoted within the range of ± 10% of the estimated unit cost, otherwise, the bid shall be considered as non-responsive and the EMD shall be returned without forfeiture. It has been further clarified that the quoted price + 10% of the estimated unit cost or -10% of the estimated unit cost shall also be considered as a responsive bidder. Thus, it has been made specific to the bidder that any bid which quoted the price above +10% or below -10% of the estimated unit cost would be declared non-responsive. It is because of the said Clause 1.3.2, the price bid of one of the bidders was declared non-responsive.
13. On a perusal of the sub-clause (a) of Clause 1.3.3, quoted above, it is found that the bid document has clearly indicated that irrespective of the status of a bidder, whether it is an MSE unit or a non-MSE unit, the bids of all the bidders would be ranked first in an ascending order i.e. L1, L2, L3, _ _ _ etc. and in case of a tie in the quoted price amongst two or more bidders, then the rankings of the bidders could be arranged according to their MAAT value. The bid document has also laid down the procedure for ranking based on their MAAT value. Thus, at the very beginning, the bids of the bidders are to be evaluated only in terms of sub- clause (a) of Clause 1.3.3 of the bid document. It is only thereafter the evaluation of the bids are to be made in respect of a non-MSE bidder vis-à-vis a MSE bidder.
14. The submission advanced by the learned counsel for the petitioner that sub-clause (b) Page No.# 12/13 of Clause 1.3.4 of the bid document has provided for according priority to an MSE bidder in a case of equality of bid prices between an MSE bidder and a non-MSE bidder cannot be countenanced. The terms and conditions of the bid document are to be strictly adhered to at the time of evaluation of the tenders and it is not generally permissible for the tendering authority to make any deviation therefrom. If the procedure provided in the bid document for evaluation of the bids is clear and specific then such a procedure is to be followed by the tendering authority while tendering the tender. If there is no ambiguity in the procedure and the same has been followed by the tendering authority in awarding the contract then this Court in exercise of its power of judicial review available under Article 226 of the Constitution of India does not interfere with such a decision unless there is any palpable irregularity in the decision making process.
15. On scrutiny of the terms and conditions of the bid document and the procedure followed by the tendering authority in selecting the bidders as L1, L2, L3 and L4, this Court is of the considered view that the rankings accorded to the bidders at the very beginning in terms of sub-clause (a) of Clause 1.3.3 of the bid document on the basis of the MAAT value does not get displaced in view of the tie in the quoted price amongst two or more bidders and in the event the quoted price of an MSE bidder, ranked as L2 like the petitioner in the case in hand, is equal to a non-MSE bidder like the respondent no. 5 by virtue of sub-clause
(b) of Clause 1.3.4 of the bid document. The petitioner has not assailed Clause 1.3.3 and Clause 1.3.4 of the bid document and thus, it can be presumed that it participated in the competitive bidding process after being aware of the procedure laid down in the bid document for according the rankings amongst the bidders. After such participation, it would not be open for the petitioner to say that his selection as L2 bidder is bad when there is no deviation in the process of according the rankings. It does not appear that the bid evaluation committee had deviated in any manner to adhere to the terms and conditions of the bid document and in following the procedure prescribed therein for finding out the L1 bidder (the respondent no.5) and the L2 bidder (the petitioner) after short listing the four eligible bidders who had quoted the same price of Rs. 36,900/- i.e. 10% below the estimated unit cost.
16. In the light of the above discussion, this Court is of the unhesitant view that the Page No.# 13/13 decision making process is not found vitiated in any manner and there appears to be no deviation while awarding the subject-work in 75:25 ratio between the respondent no. 5 and the petitioner. In the above view of the matter, the contentions advanced on behalf of the petitioner are found not acceptable and the impugned decision of the respondent authorities does not call for any interference. Consequently, the writ petition is found devoid of merits and the same is dismissed. The interlocutory application is disposed of in the aforesaid terms. The interim order dated 22.02.2021 stands recalled. There shall, however, be no order as to cost.
JUDGE Comparing Assistant