Orissa High Court
Af Enterprises Ltd vs State Of Odisha on 21 July, 2023
Author: B.R. Sarangi
Bench: B.R. Sarangi
ORISSA HIGH COURT : CUTTACK
W.P.(C) No. 579 OF 2023
In the matter of an application under Articles 226 and 227
of the Constitution of India, 1950.
---------------
AF Enterprises Ltd.
Registered Office at: DSM-334
DLF Tower, Shivaji Marg
Najafgarh Road, Moti Nagar
New Delhi - 110 015 ... Petitioner
-VERSUS-
State of Odisha
and Others ... Opposite Parties
Counsel appeared for the parties:
For the Petitioner : Mr. Kali Prasanna Mishra,
Senior Advocate with
Mr. Akash Bhuyan, Advocate
For the Opposite Parties : Mr. Prabhu Prasanna Mohanty,
Additional Government Advocate
for the opposite party No.1-
Special Secretary, Agriculture
and Farmers Empowerment
Department
Mr. Bibhu Prasad Tripathy,
Advocate for the opposite party
W.P.(C) No.579 of 2023 Page 1 of 29
No.2-Odisha Agro Industries
Corporation Ltd.
Mr. Bibhu Prasad Das,
Advocate for the opposite party
No.4-Supreme Industries Ltd.
Mr. Prafulla Kumar Rath,
Senior Advocate
with Saibrata Rath, Advocate for
the opposite party No.5-Uma
Plastics Ltd.
Mr. Subir Palit, Senior Advocate
with Mr. Pratik Dash, Advocate
for the opposite party No.6-
Nilkamal Ltd.
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R. SARANGI AND THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing: 18.07.2023 :: Date of Judgment: 21.07.2023 MURAHARI SRI RAMAN, J.--
THE CHALLENGE:
The petitioner-AF Enterprises Ltd., a limited company incorporated in the year 1983 under the Companies Act, 1956, questions the propriety of decision rejecting its bid in the "Meeting Proceeding of Scrutinisation/Finalisation of Technical Bid for Supply of Plastic Crates" held on 29.12.2022, whereby it was found disqualified having W.P.(C) No.579 of 2023 Page 2 of 29 not fulfilled the condition stipulated in Clause 2 of the Terms and Conditions appended to the Tender Call Notice No.3018, dated 20.06.2022 for "Supply of Plastic Crates for Fruits and Vegetables" bearing Bid Identification No. M.D./OAIC-5 (A&I)/2022-23 and accordingly, makes the following prayer(s):
"*** to admit the aforesaid writ application And issue appropriate writ or writs issuing rule NISI calling upon the opposite parties to show cause as to why the rejection of the technical bid of the petitioner's company made vide Meeting Proceedings dated 29.12.2022, 11 AM under Annexure-5 and further proceedings of the tender process pursuant to the tender call notice under Annexure-1 shall not be quashed;
And if the opposite parties do not show cause or show insufficient cause the rule NISI may be made absolute. ***"
FACTS OF THE CASE:
2. Fact as outlined in the writ petition by the petitioner-AF Enterprises Ltd. ("AF", referred to for short) transpires that Tender Call Notice (TCN, for brevity) was floated on 20.06.2022 inviting bids from the eligible and approved manufacturers for supply of plastic crates for fruits and vegetables between 21.06.2022 to 11.07.2022. On 12.07.2022 the Technical Committee was to open the technical bid. Considering the grievance of M/s. L.M. Plastics, this Court vide Order dated 15.07.2022 in W.P.(C) No.579 of 2023 Page 3 of 29 W.P.(C) No.17557 of 2022 directed the Committee for disposal of representation, consequent upon which its bid was considered by the Director, Horticulture. The petitioner, being aggrieved, challenged such action before this Court in W.P.(C) No.22291 of 2022, which came to be disposed of vide Judgment dated 12.12.2022, reported at 2023 (I) ILR-CUT 124, with the observation that M/s. L.M. Plastics, Balasore failed to fulfill the Condition No.2(h) of the Terms and Conditions and thereby it was directed for finalization of bid amongst the bidders excluding the bid of M/s. L.M. Plastics. It is stated by the petitioner that on 26.12.2022 along with the petitioner-company, others namely M/s. Supreme Industries Ltd.-opposite party No.4, M/s. Uma Plastics Ltd.-opposite party No.5, M/s.Nilkamal Ltd.-opposite party No.6 and NACOF India Ltd. were intimated vide Letter No.6757(5), dated 26.12.2022 for scrutiny of technical bid as also opening of the financial bid on 29.12.2022.
2.1. It is further stated by the petitioner that assigning reason of lack of experience as contained in Clause 2(c), i.e., Qualification for awards of contract, in respect of M/s. AF Enterprises Ltd. and M/s. NACOF India Ltd., their bids were rejected which was intimated by e-mail on 03.01.2023. It is given to understand by the opposite party No.4 by way of written note of submission, which W.P.(C) No.579 of 2023 Page 4 of 29 information was received on consideration of application under the Right to Information Act, that on 04.01.2023 the petitioner through its Power of Attorney sought for time to produce supporting documents. However, on financial bid having been opened on the very date, the opposite party No.6 was selected as L-1, while the opposite party Nos.4 and 3 were declared L-2 and L-3 respectively.
2.2. Challenging action of the Tender Committee, the petitioner approached this Court by way of filing the instant writ petition.
3. Opposing the averments in the writ petition, the Odisha Agro Industries Corporation Ltd.-opposite party No.2 submitted by filing Counter-affidavit that the Tender Evaluation Committee scrutinized the bid documents of the bidders in presence of representatives of three different bidders. Despite e-mail communication on their respective addresses and web hosting on the web page of the opposite party No.2, two of the bidders including the present petitioner chose not to be present at the time of evaluation of technical bids. The result of the scrutiny was declared on the spot by the Tender Evaluation Committee in the presence of bidders/representatives. Though the petitioner was very much aware of the schedule of scrutiny of technical bid documents via e- tender, none was present on behalf of the petitioner W.P.(C) No.579 of 2023 Page 5 of 29 during the scrutiny of technical bid opened on 29.12.2022 at 11.00 A.M. 3.1. A detailed analysis of disqualification of the present petitioner has been given by the opposite party No.2 by stating that it could not qualify in evaluation of technical bid as per the Terms and Conditions stipulated in Clause 2(c) of the Bid Document. Clause 2(c) clearly laid down that:
"The bidder should have supplied the related material of INR 6 Crore during the last three years to Government Sector/Public Sector Undertaking/ The Bidders should have sufficient number of equipment/Models meeting major specifications parameters and functioning satisfactory in India (Attach documents for confirmation attested by Chartered Accountant)."
3.2. As a matter of fact, the opposite party No.2 placed on record that the petitioner had submitted a statement certified by a firm of Chartered Accountants namely CAAN and Associates, Faridabad in the Bid Document, where total turnover of the petitioner for the last three years was disclosed at Rs 7,52,94,089.59. On scrutiny of said statement, four business transactions had been found to be in connection with Government supply which came to be at Rs.2,66,77,955.30 during the years 2020-21 & 2021-22. The detail of the Government supply during these years were as follows:
W.P.(C) No.579 of 2023 Page 6 of 292020-21 Deputy Commissioner of Police Rs. 35,400.00 2020-21 Uttar Pradesh Medical Supplies Rs. 29,50,000.00 2021-22 Punjab Health System Corporation Rs. 29,75,055.30 2021-22 Uttar Pradesh Medical Supplies Rs. 2,07,17,500.00 Total Rs. 2,66,77,955.30 The sale figures were submitted by the petitioner- company without supporting documents. The other documents, submitted by the petitioner, as per statement of the firm of Chartered Accountants were not related to Government transactions. It is transpired from the figures that the petitioner did not satisfy the eligibility condition envisaged in Clause No. 2(c) of Bid Identification No- MD/OAIC-5(A&1)/2022-23. In another document submitted by the petitioner company i.e. Rate Contract with Uttar Pradesh State Horticulture Co- operative Marketing Federation (HOFed), it has been mentioned that, M/s Sheetal Enterprises is an authorized firm of petitioner-company for HOFed. It is urged by the opposite party No.2 that even if the business transactions of M/s. Sheetal Enterprises are taken into account, the total transaction of supplies would come to Rs.4,59,53,255.30. This figure again would not qualify for consideration for analysing eligibility condition as the condition of tender requires turnover of Rs.6,00,00,000/- with respect to supply of related materials to Government and Public Sector Undertaking.W.P.(C) No.579 of 2023 Page 7 of 29
3.3. It is, hence, contended that since the petitioner was not found eligible as per Clause 2(c) of the Terms and Conditions of the Bid Document, it could not be pleaded by it that there was no justifiable reason to reject the technical bid of the petitioner-company.
3.4. Strongly protesting another significant allegation about non-opening the financial bid on the date of finalization of technical bid, the opposite party No.6 would submit that on 12.07.2022 the technical bid was opened in the e-portal and the same was downloaded. However, no technical evaluation took place on the said date. The scrutiny of technical bid was undertaken on 29.12.2022 at 11 A.M. As the Digital Signature Certificate did not respond, the proceedings of meeting could not be uploaded, as a result of which the opening of financial bid was deferred. On 03.01.2023 intimation of said proceeding of meeting being uploaded, the financial bid was rescheduled to be opened on 04.01.2023. Therefore, denying the allegation that there was no transparency in the proceedings in opening the technical bid, it is replied that the qualified bidders in technical evaluation of the bids were intimated about the opening of financial bid on 04.01.2023. It is placed on record that as M/s.
Nilkamal Ltd.-opposite party No.6, declared L-1, expressed for supply of 2,20,200 numbers of plastic crates within stipulated period, and the next one, L-2, W.P.(C) No.579 of 2023 Page 8 of 29 namely M/s. Supreme Industries Ltd.-opposite party No.4 having agreed to match the rate of L-1, was given orders for supply of 2,79,800 numbers of plastic crates.
3.5. The entire process of evaluation of bids being taken up in presence of bidders or their representatives, no mala fide or bias ought to have been imputed by the petitioner. Hence, judicial review under the aforesaid premise is uncalled for.
4. Responding to the averments and contents of the writ application, the L-2 bidder, namely M/s. Supreme Industries Limited brought out the fact that M/s. L.M. Plastics having not adhered to condition stipulated in Clause 2(h) of the Terms and Conditions of the Bid Document that the bidders were required to make available sample crates (2 in numbers) as per specification given in the Tender Call Notice, it was disqualified, which was subject-matter of this Court in the case of L.M. Plastics Vrs. Odisha Agro Industries Corporation Limited, W.P (C) No. 17557 of 2022, disposed of on 15.07.2022 by this Court with a direction to consider representation. Pursuant to said Order, it was given opportunity for consideration of its bid. However, the decision of Tender Committee dated 25.08.2022 was carried to this Court by the instant petitioner-AF Enterprises Limited in W.P.(C) No. 22291 of 2022 which came to be disposed of vide Judgment dated 12.12.2022 W.P.(C) No.579 of 2023 Page 9 of 29 [reported at 2023 (I) ILR-CUT 124]. In the said Judgment it was held that tender conditions are "sacrosanct" and non-fulfilment of any of the conditions is fatal. Holding so, this Court directed for removing M/s. L.M. Plastics from the tender process and the Director, Horticulture was required to finalise the bid amongst the remaining bidders. In the said case this Court has given an imprimatur in the following manner:
"24. While parting with the case, this Court deem sit proper to observe that henceforth while dealing with the tender matter, the Director of Horticulture- opposite party No.3 shall see that any of the tender conditions is not lost sight of."
4.1. Accordingly, in the scrutiny of remaining five bidders held on 29.12.2022, the present petitioner-AF was found ineligible inasmuch as it failed to satisfy the condition as to the experience of supply of plastic crates to Government Sector and Public Sector Undertaking as required under Clause 2(c) of the Terms and Conditions attached to Bid Document.
4.2. Shorn off other details, it is placed by the opposite party No.4-M/s. Supreme Industries Limited that after finalization of financial bid the supply order was given to M/s. Nilkamal Limited, L-1, which having expressed inability to supply required quantity of plastic crates in total within period stipulated, in the negotiation with the W.P.(C) No.579 of 2023 Page 10 of 29 opposite party No.4-Supreme Industries Limited, it agreed to supply the material at the same price as that is agreed by L-1. Therefore, the opposite party No.4 was given orders to supply rest of the quantity of plastic crates, in connection thereto it placed bank guarantee as well as performance security with the Odisha Agro Industries Corporation Ltd.-opposite party No.2.
5. The opposite party No.6-M/s. Nilkamal Ltd. filed Counter-affidavit stating similar facts as pleaded by the opposite party No.4-M/s. Supreme Industries Ltd. It has affirmed that after finalization of financial bid, on being declared successful, order for supply was placed on 10.01.2023, in connection thereto it furnished bank guarantee and performance security in favour of the Odisha Agro Industries Corporation Ltd.
ARGUMENTS ADVANCED BY THE RESPECTIVE PARTIES:
6. Sri Kali Prasanna Mishra, learned Senior Advocate assisted by Sri Akash Bhuyan, learned Advocate for the petitioner-AF laid stress on the point that though the company had related experience and its turnover of supply of plastic crates was "approximately INR 7.5 Crores to the Government sectors" and "the petitioner's company has also attached the certificate from Chartered Accountant showing its turnover of 6 Crores every year in the last three years from the sale of plastic W.P.(C) No.579 of 2023 Page 11 of 29 crates", arbitrariness can very well be smacked from the decision of the Technical Committee in rejecting the bid of the petitioner while showing favouritism towards M/s.
Nilkamal Ltd., the opposite party No.6 (declared L-1) and M/s. Supreme Industries Ltd.-the opposite party No.4 (L-2).
6.1. Refuting such a contention, Sri Bibhu Prasanna Tripathy, learned counsel appearing for the opposite party No.2-OAICL, submitted that the facts and figures as culled out from the documents furnished by the petitioner-company would show that its supply of related materials, i.e., plastic crates to the Government Sector and Public Sector Undertaking was to the tune of Rs.4,59,53,255.30 (inclusive of turnover of supply through M/s. Seetal Enterprises), which is considered far below the required condition stipulated in Clause 2(c) of the Terms and Conditions forming part of Bid Document. Furthermore, since no supporting documents did find place along with the Tender Document, there is no scope for vouching for such a statement made by the petitioner.
6.2. Sri Subir Palit, learned Senior Advocate assisted by Sri Pratik Dash, learned Advocate for the opposite party No.6 (L-1) supporting the stand of the opposite party No.2 submitted that entire process of evaluation being transparent and with due application of mind by the W.P.(C) No.579 of 2023 Page 12 of 29 Committee, the decision to reject the bid of the petitioner cannot be tinkered with. Non-compliance of Terms and Conditions contained in Clause 2(c) of the Bid Document by the petitioner-company is manifest on the record itself. Placing reliance on the information supplied under the Right to Information Act that the petitioner sought for "seven days' time to submit the annual turnover in respect of supply made in Government Procurement Process" on 04.01.2023, i.e., the date of opening of financial bid, it is contended that the bid documentation of the petitioner remained incomplete by this date. Referring to Paragraph 2.2 of AF Enterprises Limited Vrs. The State of Odisha, 2023 (I) ILR-CUT 124 qua the subject-bid documents, it is submitted that as per Clause 9 of the Instruction to Bidder, bids cannot be submitted after due date and time. This Court at Paragraphs 9 and 10 of said Judgment noted the following fact on the objection being raised by the instant petitioner with respect to other bidder, namely M/s. L.M. Plastics, Balasore:
"*** if the opposite party No.4 has not adhered to the terms and conditions of the bid documents, then question of allowing opposite party No.4 to participate in the bid on the strength of representation does not arise.
*** On the basis of admission of all the parties, that opposite party No.4 had no adhered to the conditions stipulated in the tender documents, the subsequent W.P.(C) No.579 of 2023 Page 13 of 29 direction given by the Director, Horticulture, vide Order dated 25.08.2022, to frustrate the conditions of the bid documents, cannot sustain."
6.3. Accordingly, this Court in the aforesaid reported case directed that "while dealing with the tender matter, the Director of Horticulture-opposite party No.3 shall see that any of the tender conditions is not lost sight of".
6.4. It is, therefore, unanimously submitted by the counsel for the opposite parties that from the conduct of the petitioner-company it is apparent that on the date of opening of financial bid it had not completed its bid and having been found to have not fulfilled the required condition stipulated in Clause 2(c) of the Terms and Conditions of the Bid Document, its bid was rightly rejected, which does not warrant indulgence by this Court.
6.5. It is submitted by the counsel for the opposite parties that the scrutiny of technical bid being undertaken on 29.12.2022 keeping in view the observation of this Court in paragraph 24 of the Judgment in the case of AF Enterprises Ltd. Vrs. State of Odisha, 2023 (I) ILR-CUT 124, the contentions of the petitioner by way of Rejoinder-affidavit that it was declared qualified on 12.07.2022 is fallacious and tainted. Having not disputed the facts and figures placed by the opposite party No.2 in its Counter-affidavit that the total supply W.P.(C) No.579 of 2023 Page 14 of 29 of plastic crates to the Government Sector and Public Sector Undertaking did not exceed Rs.6,00,00,000/- which is one of the conditions in Clause 2(c) of the Terms and Condition of the Bid Document, mere assertion of the petitioner in the Rejoinder-affidavit at the end of paragraph 4 that "since the petitioner was declared qualified on 12.07.2022, further declaring him disqualified on the plea that the petitioner was unable to fulfil the Clause 2(c) of Bid Identification No. MD/OAIC-5 (A&I)/2022-23 is not tenable in the eye of law" does not stand to reason. In the Counter-affidavit the opposite party No.2 demonstrated that even after clubbing turnover of supply to U.P. State Horticulture Co- operative Marketing Federation (HOFed) through M/s. Sheetal Enterprises, the petitioner could not satisfy the eligibility condition stipulated in Clause 2(c). Yet, without bringing forth any contrary material on record to indicate that the figures mentioned in the Counter- affidavit are erroneous, the petitioner made the statement that "It was also not required further to assess another document submitted by the petitioner- company, i.e., Rate contract with U.P. State Horticulture Co-operative Marketing Federation (HOFed), where it is mentioned that M/s. Sheetal Enterprises is an authorised firm of petitioner-company for HOFed" after declaring it qualified. The counsel for the opposite parties, therefore, urged that in its own case, viz. AF W.P.(C) No.579 of 2023 Page 15 of 29 Enterprises Ltd. Vrs. State of Odisha, 2023 (I) ILR-CUT 124, this Court directed the Director, Horticulture that while dealing with tender matter he should be cautious about the tender conditions. Therefore, in order to see that bidders have satisfied the eligibility criteria set forth in the Tender Document, verification was made which resulted in the fact that the present petitioner-company did not fulfil the condition stipulated in Clause 2(c) of the Terms and Conditions.
6.6. Hence, the counsel for the opposite parties insisted for dismissal of the writ petition with cost.
DECISION OF THE TENDER COMMITTEE UNDER CHALLENGE:
7. Decision taken in the Meeting held on 29.12.2022 as is placed at Annxure-5 of the Counter Affidavit runs as follows:
"Meeting Proceeding of Scrutinisation/Finalisation of Technical Bid for Supply of Plastic Crates on Dated 29.12.2022, 11 A.M. The meeting of internal purchase committee is held on dated 29.12.2022 at 11. A.M. in Conference Hall of the Head Office for finalisation of technical bid for supply of plastic crates. The members present are in annexure-II and the representative of bidders are in annexure-III. Initiating the discussion DGM (E&I)-Cum-Member Convener intimated that the tender call notice was published in the newspaper i.e The Samaj (All), The Sambad (All), The Prameya (All), The Times of India (All) & The New Indian Express (All) for submission of documents W.P.(C) No.579 of 2023 Page 16 of 29 through Orissa Government portal http://tenderodisha.gov.in. for supply of plastic crates suitable for fruits & vegetables from 21.06.2022 to 11.07.2022. The technical bid was opened on dated 12.07.2022 at 3 PM and found that 6 numbers of manufacturers have participated in the tender. The documents of all the 5 manufacturers have been downloaded & the list of document was submitted are enlisted as per the term & condition of the tender. One bidder namely M/s. L.M. plastic disqualified due to non- submission of sample in scheduled time as per Bid Notification No. M.D/OAIC-5(A&I)/2022-23, Clause 2(h).
All documents submitted by the bidders are scrutinised by the committee members today.
The documents submitted by Supreme Industries Ltd. are found in order. It fulfils the condition of tender accepted, so the committee accepted the technical bid of Supreme Industries Ltd.
The documents submitted by Nilkamal Ltd are found in order. It fulfils the condition of tender, so the committee accepted the technical bid of Nilkamal Ltd.
The documents submitted by Uma Plastic Ltd are examined. The experience of supplying plastic crate to the tune of 1.60 Crore through OAIC is considered as their experience and supply of plastic waste bin to tune of 3.25 Crore is considered as their turnover in addition to 3.60 Crore of supply of plastic crate which is fulfilling the turn over criteria of tender. The other documents submitted by the Uma Plastic Ltd are found correct. So the committee accepted the technical bid of Uma Plastic Ltd.W.P.(C) No.579 of 2023 Page 17 of 29
The documents submitted by NACOF (India Ltd.) are examined. It is found that they have no experience in supply of plastic crates. They have not also submitted BIS certificate and not stated the production capacity of factory. Hence they are not fulfilling the condition of the tender. So the committee rejected the technical bid of NACOF (India Ltd.).
The documents submitted by AF Enterprises Ltd are examined. It is found that they have no relevant experience in supply of plastic crates. Hence not fulfilling the condition of the tender. So the committee rejected the technical bid of AF Enterprises Ltd.
The scrutiny statement is prepared & placed at annexure- I. Three nos. of bidders namely, M/s. Nilkamal Ltd, M/S Supreme Industries Ltd and Uma Plastic Ltd are successfully qualified in Technical bid. Hence Committee recommended for opening of financial bid of above mentioned successful bidders in same day i.e., 29.12.2022 at 4.00 PM in presence of the bidders/ representatives/online."
LEGAL POSITION:
8. This Court in AF Enterprises Ltd. Vrs. State of Odisha, 2023 (I) ILR-CUT 124, which arose in the context of present tender, has already noticed certain principles with regard to sanctity of conditions laid in the tender which is inflexible in nature. Referring to Bakshi Security and Personnel Services Private Limited Vrs. Devkishan Computed Pvt. Ltd., (2016) 8 SCC 446; Poddar Steel Corporation Vrs. Ganesh Engineering Works, (1991) 3 W.P.(C) No.579 of 2023 Page 18 of 29 SCC 273; B.S.N. Joshi and Sons Ltd. Vrs. Nair Coal Services Ltd., (2006) 11 SCC 548; Sorath Builders Vrs. Shreejikrupa Buildcon Limited, (2009) 11 SCC 9; and Radhamohan Patra Vrs. State of Odisha, AIR 1992 Ori 221, it was held that the essential conditions must be adhered to strictly and are required to be enforced with rigidity. Whereas the appellant, who was lacking eligibility, in Durgawati Devi Vrs. Union of India, S.L.P.(C) No.37479 of 2016, it was held by the Supreme Court of India vide Order dated 04.10.2019, that the High Court cannot exercise power under Article 226 of the Constitution of India to relax the Terms and Conditions contained in the Tender Call Notice.
ANALYSIS AND DISCUSSIONS:
9. Having heard Sri Kali Prasanna Mishra, Senior Advocate with Sri Akash Bhuyan, Advocate appearing for the petitioner, Sri Prabhu Prasad Mohanty, Additional Government Advocate for the opposite party No.1, Sri Subir Palit, Senior Advocate with Sri Pratik Dash, Advocate for the opposite party No.6, Sri Bibhu Prasad Tripathy, Advocate for the opposite party No.2 and Sri Bibhu Prasad Das, Advocate for the opposite party No.4 and gone through the materials on record, it remained undisputed that on 29.12.2022 when the Tender Evaluation Committee scrutinized the bid documents, despite e-mail communication and web hosting on the W.P.(C) No.579 of 2023 Page 19 of 29 web page of OAIC the instant petitioner abstained from participating in the process. It is also unchallenged that the figures of turnover of supply of plastic crates is at Rs.4,59,53,255.30 (inclusive of supply made through Sheetal Enterprises to HOFed) as mentioned by the opposite party No.2 in its Counter-affidavit. The opposite party No.6 in the list of Dates and Note of Submission dated 08.05.2023 specifically stated that document furnished to it on consideration of application under the Right to Information Act, showed that the Power of Attorney Holder of the petitioner-company "sought for time to submit supporting documents before the Tendering Committee in support of their Government business turnover".
9.1. From the above it is clearly evident that the tender document of the petitioner was incomplete on the last date for submission of tender. Further fact is manifestly clear that the turnover of supply of plastic crates to the Government Sector/Public Sector Undertaking is much below Rs.6,00,00,000/- as stipulated under Clause 2(c) of the Terms and Conditions appended to the Tender Call Notice. Taking note of Clause 8 of the Tender Document, this Court in AF Enterprises Ltd. Vrs. State of Odisha, 2023 (I) ILR-CUT 124 qua the instant tender in the case of present petitioner observed that bids cannot be submitted after due date and time. The essential W.P.(C) No.579 of 2023 Page 20 of 29 condition like requirement of supply of "related material of INR 6 crores during the last three years to Government Sector/Public Sector Undertaking"
contained in Clause 2(c) referred to above cannot be relaxed. This view of this Court is fortified by the decision of Hon'ble Supreme Court of India vide Order dated 04.10.2019 passed in Durgawati Devi Vrs. Union of India, S.L.P.(C) No.37479 of 2016. Seeking to furnish further documents to supplement contention of the petitioner was rightly not allowed.
9.2. The opposite party No.2 candidly explained the fact that on 12.07.2022 the technical bid documents of all the bidders including that of the present petitioner was opened in the e-portal and downloaded. However, there was no evaluation on that date. It is only in conformity with the decision of this Court rendered in AF Enterprises Ltd. Vrs. State of Odisha, 2023 (I) ILR-CUT 124, on 29.12.2022 scrutiny of technical bids was undertaken with due intimation to all the bidders vide Letter No.6657, dated 26.12.2022. On the very date all the five bidders including the present petitioner vide Letter No.6707, dated 29.12.2022 were intimated that due to technical glitch in response of Digital Signature Certificate, the financial bid could not be opened on the said date. Since the petitioner was not found eligible as per Clause 2(c) of the Terms and Conditions attached to W.P.(C) No.579 of 2023 Page 21 of 29 the Tender Document, the intimation regarding opening of the financial bid on 04.01.2023 in respect of three eligible bidders, namely M/s. Supreme Industries Ltd., M/s. Uma Plastics Ltd. and M/s. Nilkamal Ltd. was given vide Letter No.24, dated 03.01.2023. This Court is satisfied by perusal of documents forming part of pleadings of respective parties that transparency has been maintained throughout the tender process. It is also found that the Tender Committee has performed keeping in view the observations made in AF Enterprises Ltd. Vrs. State of Odisha, 2023 (I) ILR-CUT 124 and Order dated 15.07.2022 passed by this Court in W.P (C) No. 17557 of 2022 (L.M. Plastics Vrs. Odisha Agro Industries Corporation Ltd.). Taking into consideration factual and legal aspects of the matter, the Technical Committee has evaluated the eligibility of all the bidders and excluded M/s. L.M. Plastics as they were disqualified for having not fulfilled the condition as stipulated under Clause 2(h) of the Terms and Conditions.
10. It is trite that the public authorities are governed by the "rule of law". Consequently, such authorities are constitutionally obligated to maintain complete fairness and transparency during the completion of the tender process and in taking decisions to award Government contracts to successful bidders/tenderers after considering the bids/tenders submitted by all the W.P.(C) No.579 of 2023 Page 22 of 29 bidders/tenderers. The manner, method, and motive with which the public authorities undertake such administrative actions and decisions may be tested upon certain grounds, if and when unsuccessful bidders/tenderers challenge their exclusion, by such authorities, in the writ petitions under Article 226 of the Constitution of India. However, said exercise of power is frowned with caution that whilst entertaining such writ petitions, the implications of the judicial intervention on commercial activities and projects undertaken by public authorities and in turn the interests of the citizens of India, for the benefit of whom such activities and projects are undertaken, ought to be given due consideration by the courts. Therefore, effort is to be made to strike the right balance between the private interests of unsuccessful bidders and the larger public interest of the citizens of India to ensure that the latter is not truncated at the cost of the former.
10.1. The Supreme Court of India in Uflex Ltd. Vrs.
Government of Tamil Nadu, (2022) 1 SCC 165, has very astutely observed that although the objective of the "tender jurisdiction" of the High Courts under Article 226 of the Constitution was to ensure greater transparency in the said administrative actions and decisions, today, the ground reality is that almost no tender document issued by a public authority remains W.P.(C) No.579 of 2023 Page 23 of 29 unchallenged by unsuccessful bidders/tenderers. The Supreme Court, relying upon Jagdish Mandal Vrs. State of Odisha, (2007) 14 SCC 517 observed that a tenderer or a contractor aggrieved by an alleged breach of tender conditions by a public authority always has the statutory remedy of seeking damages before a civil court. The said Court was pleased to hold that:
"2. The judicial review of such contractual matters has its own limitations. It is in this context of judicial review of administrative actions that this Court has opined that it is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. The purpose is to check whether the choice of decision is made lawfully and not to check whether the choice of decision is sound. In evaluating tenders and awarding contracts, the parties are to be governed by principles of commercial prudence. To that extent, principles of equity and natural justice have to stay at a distance.
3. We cannot lose sight of the fact that a tenderer or contractor with a grievance can always seek damages in a civil court and thus, 'attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted.' ***"
10.2. In Agmatel India (P) Ltd. Vrs. Resoursys Telecom, (2022) 5 SCC 362 the crux of the matter involved was as to W.P.(C) No.579 of 2023 Page 24 of 29 whether the High Court has been justified in interfering with the view taken by the Tender Inviting Authority in rejection of the technical bid of the writ petitioner for want of fulfilment of "past performance" criterion about supply of "same or similar category products" of 60% of bid quantity in at least one of the last three financial years? The Supreme Court of India held as follows:
"26. The abovementioned statements of law make it amply clear that the author of the tender document is taken to be the best person to understand and appreciate its requirements; and if its interpretation is manifestly in consonance with the language of the tender document or subserving the purchase of the tender, the Court would prefer to keep restraint. Further to that, the technical evaluation or comparison by the Court is impermissible; and even if the interpretation given to the tender document by the person inviting offers is not as such acceptable to the constitutional court, that, by itself, would not be a reason for interfering with the interpretation given."
10.3. In N.G. Projects Limited Vrs. Vinod Kumar Jain, (2022) 6 SCC 127, the Supreme Court of India quoted the following from Jagdish Mandal Vrs. State of Odisha, (2007) 14 SCC 517:
"Therefore, a Court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:W.P.(C) No.579 of 2023 Page 25 of 29
(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or
(ii) Whether the process adopted or decision made is so arbitrary and irrational that the Court can say:
'the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached';
(iii) Whether public interest is affected.
If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action."
DECISION AND CONCLUSION:
11. The allegation of the petitioner that there was re-
scrutiny of tender on 29.12.2022 is not countenanced by evidence. Rather it is evident from the document vide Annexure-A/4 enclosed to the Counter-affidavit of the opposite party No.4 that on 12.07.2022 the Tender Documents were downloaded, but not opened for evaluation. The text of said document is extracted herein below for better appreciation of factual aspect:
"Proceedings of Opening of Technical Bid for Procurement of Plastic Crates on Dated 12.07.2022 W.P.(C) No.579 of 2023 Page 26 of 29 As per the schedule the meeting of internal purchase committee is held on dated 12.07.2022 at 3.P.M. in Conference Hall of the Head Office for opening of technical bid for procurement of plastic crates. The members present in the meeting is at Annexure-A. It is found that 6 manufacturers (Annexure-B) have submitted bidding documents in online, out of which 5 bids are qualified to be opened. The bid of M/S LM plastic is not considered due to non-submission of samples in time as per clause 2(h) of the tender bid identification No-MD/OAIC-5(A&T)2022-23."
The words "to be opened" indicate an event to happen in the future. Records reveal that the technical bids of bidders were opened on 29.12.2022 after disposal of W.P.(C) No. 22291 of 2022 [AF Enterprises Limited Vrs. State of Odisha and others] by this Court vide Judgment dated 12.12.2022. As a result of said Judgment the bid of M/s. L.M. Plastics, Balasore was excluded. Therefore, the contention that the petitioner had already been considered as eligible cannot be accepted.
12. It is not for this Court to consider whether the Technical Evaluation Committee was correct or not. What has to be seen in exercise of judicial review of administrative action is to examine whether proper procedure has been followed. When proper procedure has been followed, as in this case, and on finding lowest price being quoted by the opposite party No.6-Nilkamal Plastics Ltd., the same is accepted and the opposite party No.4-Supreme W.P.(C) No.579 of 2023 Page 27 of 29 Industries Ltd., which was declared L-2, having agreed to supply the balance quantity of plastic crates at the rate at which the opposite party No.6 (L-1) has quoted to supply, the decision taken by the opposite party No.2- Odisha Agro Industries Corporation Ltd. cannot be faulted with. Added to this, asking time by the representative of the petitioner-company on 04.01.2023 for production of further document clinches that on the last date of submission of tender document the same remained inchoate. In view of imprimatur in the petitioner's own case [AF Enterprises Ltd. Vrs. State of Odisha, 2023 (I) ILR-CUT 124] qua the self-same tender process that the conditions laid in Tender Call Notice being sacrosanct and cannot be relaxed by interdiction of this Court in exercise of power under Article 226 of the Constitution of India, it cannot be said that the decision dated 29.12.2022 of the Tender Committee was tainted with arbitrariness and the action of the Committee is mala fide or they have acted in a manner to show favouritism. Case of the petitioner does answer in the negative in respect of the questions as directed to be asked in N.G. Projects Limited Vrs. Vinod Kumar Jain, (2022) 6 SCC 127.
13. For the discussions made above, the reasons stated supra, and scope of judicial review in tender matters, particularly Government tenders, being very limited, as W.P.(C) No.579 of 2023 Page 28 of 29 held in Uflex Ltd. Vrs. Government of Tamil Nadu, (2022) 1 SCC 165, this Court is not inclined to show indulgence in the matter. Therefore, this Court holds that the writ petition is liable to be dismissed and, therefore, it does so.
14. In the result, the challenge as laid to the decision taken in the Proceeding of Meeting held on 29.12.2022 vide Annexure-5 fails and consequently, further proceeding of the tender process is sustained.
15. Accordingly, the writ petition stands dismissed, but in the circumstances, there is no order as to costs.
(MURAHARI SRI RAMAN)
JUDGE
DR. B.R. SARANGI, J. I agree.
(DR. B.R. SARANGI)
JUDGE
Signature Not Verified
Digitally Signed
Signed by: LAXMIKANT MOHAPATRA
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK Date: 21-Jul-2023 15:58:33 Orissa High Court, Cuttack The 21st July, 2023, Aks/Laxmikant W.P.(C) No.579 of 2023 Page 29 of 29