WP(C)/2892/2021 on 2 September, 2021

[Cites 17, Cited by 0]

Gauhati High Court

WP(C)/2892/2021 on 2 September, 2021

Advocate for the Petitioner : Mr. K.N. Choudhury, Senior Advocate Mr. B.D. Deka, Advocate Advocate for the Respondent nos. 1 to 3 : Mr. D. Saikia, Advocate General, Assam Mr. S. Bora, Standing Counsel, Sarba Siksha Abhiyan, Assam Advocate for the Respondent no. 6 : Mr. M. Rohatgi, Senior Advocate Mr. P. Bindra, Advocate Mr. A. Dhar, Advocate Date of Hearing : 28.07.2021 Date of Judgment : 02.09.2021 BEFORE HON'BLE MR. JUSTICE MANISH CHOUDHURY JUDGMENT & ORDER (CAV) This writ petition under Article 226 of the Constitution of India has arisen out of a Notice Inviting Re-e-Tender ["the NIReT", for short] in connection with Tender No. RMSA/ICT/237/1306/4457 dated 17.02.2021 issued by the respondent no. 3 i.e. the Mission Director, Samagra Siksha, Assam.

2. By this writ petition, the petitioner herein, a company incorporated under the provisions of the Companies Act, 1956, has assailed a decision taken in a meeting of the Technical Committee held on 01.03.2021 in the office of the respondent no. 3 wherein the Technical Committee declared the bid submitted by the petitioner in response to the NIReT dated 17.02.2021 to be non-responsive. The petitioner has sought for setting aside of the said decision taken by the Technical Committee with a further direction to declare the petitioner as a qualified bidder in the Technical Bid submitted by it on 26.02.2021. A direction is also sought for re-evaluation of the Technical Bid of the petitioner and to allow the petitioner to participate in the Financial/Commercial Bid.

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3. The background facts leading to the institution and necessary for adjudication of the instant writ petition may be adverted to as follows :-

3.1. By the said NIReT, sealed bids were invited from interested bidders for selection of Agencies for "Integrated Virtual Classroom with Broadcasting Software and Content Sharing Portal" ["the subject-work", for short] for the Department of Education, Government of Assam.

3.2. It is the case of the petitioner that the petitioner obtained the Bid Document for the subject-work considering itself to be eligible and qualified as per the NIReT. As per the NIReT dated 17.02.2021, the starting date of downloading of the Bid Document was 18.02.2021. After obtaining the Bid Document, it had successfully submitted its bid along with all the requisite documents mentioned in the eligibility criteria of the Bid Document on 26.02.2021. Apart from the petitioner, three other bidders had also participated in the competitive bidding process so initiated by the NIReT dated 17.02.2021. On 01.03.2021, a meeting of the Technical Committee, constituted for the purpose, was convened for evaluation and finalization of the Technical Bids of the participating bidders. In the said meeting, the Technical Committee had observed that the petitioner

(a) had not submitted the RoHS Certificate and only a self-certificate had been submitted; (b) had not submitted the TUV Certificate for Flicker Free in respect of Interactive Flat Panel; (c) had not submitted ISO for Broadcasting software; (d) had four nos. of pending legal cases; and (e) had submitted only a self-declaration from ViewSonic for the Interactive Flat Panel the Light Life of which, as per the brochure, was 30,000 hours whereas as per the tender, the requirement was 50,000 hours or more.

By observing such alleged deficiencies, the Technical Committee declared the Technical Bid of the petitioner as non-responsive. Assailing the said decision of the Technical Committee, the petitioner has approached this Court seeking, inter-alia, the directions stated above.

4. Heard Mr. K.N. Choudhury, learned Senior Counsel assisted by Mr. B.D. Deka, learned counsel for the petitioner. Also heard Mr. D. Saikia, learned Advocate General, Page 3 of 39 Assam assisted by Mr. S. Bora, learned Standing Counsel, Sarba Siksha Abhiyan for the State respondent nos. 1-3 and Mr. M. Rohatgi, learned Senior Counsel assisted by Mr. P. Bindra and Mr. A. Dhar, learned counsel for the respondent no. 6.

5. Elaborating on the grounds of rejection, Mr. Choudhury has referred to the averments made in the writ petition. As regards non-submission of the RoHS Certificate for Interactive Flat Panel and submission of only a self-certificate, it is submitted that the declaration submitted by the petitioner had clearly mentioned that the proposed model was exempted from RoHS certification along with reference number. It is his further contention that RoHS indicates a directive issued by the European Union [EU] on restriction on hazardous substances. Such directive is only applicable in the European Union [EU] and no such directive has been issued by the Government of India. The Original Equipment Manufacturer [OEM] of the petitioner has duly certified about RoHS compliance of the product. In absence of any set standards for RoHS in India, the said ground mentioned by the Technical Committee for rejection of its Technical Bid is not tenable and deserves to be set aside, he submits. As regards TUV Certificate for Flicker Free Screen and Low Blue Light for Interactive Flat Panel, the petitioner had submitted the same with its Technical Bid and the objection raised by the Technical Committee that it was merely a quotation is incorrect and unsustainable. It is further contended that the Bid Document did not contemplate submission of any such kind of certificate. The tender conditions were vague and it did not specify any particular form of certificate. As such, a compliance statement from the OEM ought to have been held as sufficient. In so far as the ground regarding non-submission of ISO for Broadcasting Software is concerned, it is his contention that the necessary compliance statement had been submitted and in support of his submission, he has referred to the document submitted along with the Technical Bid, which are also annexed to the writ petition. In the similar way, he has submitted that there was compliance in respect of Light Life of 50,000 hours in respect of the product proposed by the petitioner and a declaration about such compliance had already been submitted. Regarding the legal cases, it is submitted that those are cases which have no material bearing with regard to the eligibility, etc. of the petitioner.

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5.1. Advancing submission about denial of a level-playing field to the petitioner, learned Senior Counsel has submitted that one of the bidders i.e. the respondent no. 4 had submitted a CMMi (Level 5) Certificate which was a counterfeit one. The CMMi (Level

5) Certificate submitted by the respondent no. 4 had a validity period of 1 (one) year only whereas ordinarily, such certificate should have a validity period of 3 (three) years. It is further contended that the alleged successful bidder i.e. the respondent no. 6 had submitted bid security in the form of a bank guarantee which had its period of validity for only 85 days after the date of opening of the bids whereas the requirement was that the bank guarantee should have a validity period of 90 days from the date of opening of the bids. The Tendering Authority had conveniently ignored the above deficiencies in respect of Technical Bids of the respondent no. 4 and the respondent no. 6 only in order to have more than one bidder at the stage of Commercial Bid opening as otherwise the Tendering Authority would have to cancel the whole process if only one bidder was left out after the opening of Technical Bids, for adhering to the Guidelines of the Central Vigilance Commission [CVC].

5.2. In support of his submissions, he has relied upon the decisions of the Hon'ble Supreme Court of India in (i) Kumari Shrilekha Vidyarthi and others vs. State of Uttar Pradesh and others, reported in (1991) 1 SCC 212; (ii) Mahabir Auto Sales vs. Indian Oil Corporation, reported in (1990) 3 SCC 752; and (ii) Reliance Energy Ltd. and another vs. the Maharashtra State Road Development Corpn. Ltd. and others, reported in (2007) 8 SCC 1, Paras-36, 37, 38, 39 and 40.

6. Mr. Saikia, learned Advocate General, Assam has, at the very beginning, submitted that the writ petition, by the time it was filed, had become infructuous. He has submitted that the NIReT was floated on 17.02.2021. The last date of submission of bids was 26.02.2021 and the Technical Bids of the bidders were opened on 26.02.2021. The Evaluation Committee started evaluating the Technical Bids of the four participating bidders on and from 26.02.2021. After evaluation of the Technical Bids, the Evaluation Committee submitted a report and the Technical Committee after due Page 5 of 39 consideration, had found Technical Bids of two bidders responsive and of the remaining two bidders including that of the petitioner, non-responsive. The Technical Committee in its meeting held on 01.03.2021 recommended for opening of Commercial Bids of the two responsive bidders on 03.03.2021. Accordingly, the Commercial Bids were opened on 03.03.2021. Finding the bid of the respondent no. 6 responsive in all respects, the Supply Order in favour of the respondent no. 6 was issued on 26.03.2021. A Contract Agreement was thereafter, executed on 29.03.2021. The Supply Order dated 26.03.2021 had prescribed that the delivery of materials should be completed within 6 (six) weeks therefrom. The affidavit to the writ petition was sworn on 23.04.2021 at Mumbai and the writ petition was filed on 27.04.2021 at Guwahati. The writ petition was moved only on 10.05.2021. By the time the writ petition was filed and moved, the Supply Order had already been issued and the respondent no. 6 had already supplied the materials in pursuance to the Supply Order dated 26.03.2021 and the materials had reached the concerned godowns. The learned Advocate General has, thus, submitted that with the issuance of the Supply Order on 26.03.2021, a new cause of action arose on 26.03.2021 whereas the writ petition was filed as regards the decision of the Technical Committee dated 01.03.2021 declaring the Technical Bid of the petitioner as non-responsive, without mounting any challenge to the final decision taken after opening of the Commercial Bids and issuance of the Supply Order dated 26.03.2021. He has submitted that the writ petition is deserved to be dismissed as infructuous on the said ground only, when the petitioner despite the final decision taken after opening of the Commercial Bids and the issuance of the Supply Order dated 26.03.2021 and being well aware about its issuance, has chosen not to challenge then. By the time the writ petition was filed, third party rights had already been created.

6.1. Referring to the objectives behind the NIReT, it is submitted by learned Advocate General that the process has been initiated for providing latest technology cloud based virtual classrooms for 628 nos. of schools for a period of 5 (five) years. The Technical Bid of the petitioner was evaluated qua the terms and conditions set forth in the Bid Document only. As such, the contentions regarding arbitrariness and denial of any level-

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playing field to the petitioner have been made without any basis and they are not sustainable.

6.2. About the specific grounds of rejection of the Technical Bid of the petitioner, learned Advocate General has referred to the documents annexed to the writ petition which the petitioner has claimed to have submitted with its Technical Bid. It is his submission that a bare perusal of those documents would make it evident that the petitioner had failed to submit the essential documents in support of responsiveness of its bid. It is his contention that a declaration of RoHS compliance from the OEM would not suffice when the Instruction to Bidders [ITB] had prescribed that the Quality Certificate for the Interactive Flat Panel had to be submitted. He has submitted that it is the terms and conditions set forth in the tender process in question which would determine the responsiveness or otherwise of the bidder and not the exemption sought from the directive of the European Union [EU]. As regards the TUV Certificate for Flicker Free Screen and Low Blue Light for Interactive Flat Panel, he has submitted, by specifically referring to the documents on which the petitioner has placed reliance, that the OEM of the petitioner had itself declared that the TUV Certificate for Flicker Free had been applied for on the date of submission of the bid by the petitioner. The said declaration itself goes to show that there was no TUV Certificate for Flicker Free in respect of Interactive Flat Panel on the date of submission of the bid by the petitioner. In respect of Low Blue Light also there was only a declaration by the OEM. The Schedule of Requirements of the Bid Document had also clearly prescribed the technical specifications for Light Life of 50,000 hours or more which the petitioner had failed to meet as its product had purportedly a Light Life of only 50,000 hours.

6.3. By referring to the specific statements in the affidavit-in-opposition filed on behalf of the respondent no. 3, he has emphasized about the reasons behind the technical specifications incorporated in the Bid Document in respect of essentialness of the RoHS Certification, TUV Certification for Flicker Free and Low Blue Light in respect of Interactive Flat Panel, BIS Certification, etc. which were not included in the Bid Document as conditions which can be termed as directory.

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7. Mr. Rohatgi, learned Senior Counsel appearing for the respondent no. 6 has submitted that no relief against the respondent no. 6 has been sought for in the writ petition whereas it is the respondent no. 6 who has emerged as the successful bidder. It is the respondent no. 6 who has been awarded the subject-work by the Supply Order dated 26.03.2021. There was inordinate and inexplicable delay on the part of the petitioner in approaching the Court. The delivery schedule, as per the Supply Order dated 26.03.2021, was 6 (six) weeks and the same was over by 07.05.2021. By 07.05.2021, the respondent no. 6 had delivered the materials at the godowns of the State respondent authorities. It was only on 10.05.2021, the writ petition was moved. He has, thereby, endorsed the submissions advanced by learned Advocate General, Assam. It is his further submission that in a writ petition of such nature, even a short delay in approaching the Court is fatal and the petitioner in the case in hand, had waited beyond 6 (six) weeks, which was the delivery schedule, in approaching the Court with the writ petition. As by the time the petitioner approached the Court the respondent no. 6 had executed the Supply Order substantially the writ petition itself was infructuous on the date when it was moved.

7.1. He has further submitted that the reliance of the petitioner in the decisions of the Hon'ble Supreme Court of India in Kumari Shrilekha Vidyarthi (supra), Mahabir Auto Sales (supra) and Reliance Energy Ltd. (supra) is completely misplaced. It is his submission that the NIReT was floated for the purpose of providing 628 nos. of schools with latest technology cloud based virtual classrooms for a period of 5 (five) years, which itself is a laudable object. The public interest involved in the project is enormous and any intervention in the competitive bidding process at the instance of an ineligible bidder will entail serious consequences, more so, when the substantial part of the subject-work has been completed with the delivery of the products/materials, with only the work of installation remaining to be completed. The scope of judicial review under Article 226 of the Constitution of India is extremely limited, he submits, as laid down by various decisions of the Hon'ble Supreme Court of India as well as of this Court.

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7.2. It is also his contention that the writ petitioner is making an attempt to make this Court to re-visit the terms and conditions laid down in the Bid Document which is clearly impermissible. It is not the case of the petitioner that the bid of the respondent no. 6 was non-compliant of any of the terms and conditions of the Bid Document, except on the aspect of the bid security. A specious plea has been raised by the petitioner with regard to the period of validity of the bank guarantee submitted by the respondent no. 6 towards bid security. By referring to the bank guarantee of the respondent no. 6, he has asserted that the bank guarantee is valid till 22.05.2022. An allegation has been made with regard to the CMMi (Level 5) Certificate of the respondent no. 4 by annexing a document, downloaded from some website, which itself is of doubtful nature. That the CMMi (Level 5) Certificate (Annexure-R) of the respondent no. 5 is a counterfeit one has not been substantiated in any manner. A writ petition preferred by an invalid bidder like the petitioner in the case in hand, raising such specious pleas is not to be entertained and the same should be dismissed with cost, he submits.

7.3. Mr. Rohatgi to buttress his submissions, has referred to the decisions of the Hon'ble Supreme Court of India in (i) Tata Cellular vs. Union of India, reported in (1994) 6 SCC 651; (ii) Raunaq International Ltd. vs. I.V.R. Construction Ltd. and others, reported in (1999) 1 SCC 492; (iii) Michigan Rubber (India) Limited vs. State of Karnataka and others, reported in (2012) 8 SCC 216; and (iv) Municipal Corporation, Ujjain and another vs. BVG India Limited and others, reported in (2018) 5 SCC 462.

8. Mr. Choudhury, learned Senior Counsel for the petitioner, in reply, has submitted that none of the afore-stated five grounds, mentioned by the Technical Committee for rejection of the Technical Bid of the petitioner, is sustainable. The State respondents had opted for a process of e-tendering and it was, thus, incumbent upon them to notify the participating bidders about the various stages of the bidding process by uploading the vital information in that connection online from time to time. He has submitted that the State respondents had claimed that Commercial Bids were opened on 03.03.2021 but in the e-procurement system of the Government of Assam portal, assamtenders.gov.in the status of the bidding process, as on 03.06.2021, initiated by Page 9 of 39 the NIReT dated 17.02.2021, was still showing to be at the stage of Technical Bid Evaluation stage. On 03.03.2021, the petitioner received an e-mail at 02-56 p.m. to the effect that its bid was admitted. It received another e-mail hardly four minutes thereafter, whereby, it was informed that its Technical Bid was rejected during the process of evaluation undertaken by the Technical Committee. The participating bidders were not notified about the opening of the Commercial Bids and from the misleading status shown in the portal as late as on 03.06.2021, it is evident that the process adopted by the State respondents lacked transparency. After the rejection of its Technical Bid, the petitioner submitted a representation immediately on 03.03.2021 by e-mail, followed by other two representations on 04.03.2021 and 18.03.2021 respectively, clarifying that its Technical Bid was accompanied by all the requisite essential documents to satisfy the eligibility criteria. The representatives of the petitioner held a meeting with the respondent no. 1 on 22.03.2021 requesting for re-evaluation of its Technical Bid. The petitioner was not informed on 22.03.2021 that the Commercial Bids were already opened on 03.03.2021. The petitioner could learn about the opening of the Commercial Bids and purported Award of the contract only on 22.05.2021 when it received the affidavit-in-opposition filed by the respondent no. 3. Having come to know about it, the petitioner has also challenged the purported award of contract to the respondent no. 6 by seeking modification of the prayer in its affidavit-in-reply, filed on 05.06.2021, for setting aside of the Supply Order dated 26.03.2021 issued in favour of the respondent no. 6.

9. I have considered the submissions advanced by the learned counsel for the parties and perused the materials brought on record by the parties through their respective pleadings. I have also perused a part of the record, produced by the State respondents, and considered the decisions cited by the learned counsel for the parties in support of their contentions.

10. The notices to the respondent no. 4 and the respondent no. 5 were sent by registered post with A/D on 25.06.2021 to their respective addresses but despite passage of more than one month from 25.06.2020 none of them had entered Page 10 of 39 appearance. In view of expiry of one month from the date of dispatch of notices, the notices upon the respondent no. 4 and the respondent no. 5 are deemed to be served.

11. The Notice Inviting Re-E-Tender ["the NIReT"] being Tender no. RMSA/ICT/237/2020/4457 dated 17.02.2021 was floated for selection of Agencies for "Integrated Virtual Classroom with Broadcasting Software and Content Sharing Portal"

["the subject-work"] for the Education Department, Government of Assam by the respondent no. 3 i.e. the Mission Director, Samagra Siksha, Assam.

12. The purpose of publication of the NIReT is to make all Educational Institutions smarter and with an objective to set a benchmark in making the Education Department a role model in leveraging the latest technology Cloud based Virtual Classroom for 628 nos. of schools for 5 years. The execution of the subject-work would enable the teachers to make the classroom interaction in an easier and meaningful way with the help of contents and by inviting experts from different institutions for live classes. It is expected that the system would help the teachers to take assessment and record it. With the above objectives in view, proposals have been sought for engaging agencies by the NIReT for executing the work of establishment of Integrated Virtual Classroom with Broadcasting Software and Content Sharing Portal. The scope of work has included Supply, Installation and Commissioning of Integrated Virtual Classroom with Broadcasting Software and Content Sharing Portal for 5 years by providing Interactive Flat Panel for Interactive Display with Mini PC and accessories, Broadcasting Solutions with Admin Controls, Content Sharing Portal and Cloud Server for Virtual Class Content Repository.

13. The bidders were required to submit their bids online in the website, https://assamtenders.gov.in, with proof of payment of non-refundable tender fee of Rs. 20,000/- through demand draft/banker's cheque drawn in favour of the respondent no.

3. The tender was to be submitted online before the scheduled date and time of submission with proof of payment of earnest money deposit (EMD)/bid security of Rs. 1,93,42,400/-. As per the NIReT initially published on 17.02.2021, the last date of Page 11 of 39 submission of bids was up to 02-00 p.m., 24.02.2021 after downloading the Bid Document from the concerned website. The last date of submission of bid was, however, extended later on by way of a corrigendum.

14. In response to the said NIReT, four bidders submitted their bids viz. (a) M/s Trigyn Technologies Ltd. - the petitioner; (b) M/s Broadcasting Engineering Consultant India Ltd. - the respondent no. 4; (c) M/s Silver Touch Technologies Ltd. - the respondent no. 5; and (d) M/s Uneecops Technologies Ltd. - the respondent no. 6. The Technical Bids were opened on 26.02.2021. Thereafter, an Evaluation Committee had evaluated the Technical Bids of all the four bidders in reference to the requisite documents/information to be furnished by the bidders as per the eligibility criteria prescribed in the Bid Document. Accordingly, evaluation statements were prepared by the Evaluation Committee and the same were placed before the Technical Committee.

15. A meeting of the Technical Committee was held at 10-30 p.m. on 01.03.2021 in the office of the respondent no. 3 for finalization of the Technical Bids. The Technical Committee had examined the documents/information and evaluation statements were made in respect of the Technical Bids of the petitioner and the other 3 (three) bidders. After scrutiny and verification of the documents/information and the evaluation statements, the Technical Committee had, inter-alia, made the following observations:-

15.1. The petitioner (a) had not submitted RoHS Certificate and in its place, only a self-

certificate had been submitted; (b) had not submitted a TUV Certificate for Flicker Free in respect of Interactive Flat Panel; (c) had not submitted ISO Certificate for Broadcasting Software; (d) had four nos. of pending legal cases; and (e) had submitted a self-declaration in respect of ViewSonic Light Life and as per the brochure, its product's Light Life is 30,000 hours whereas as per the tender, the requirement was of 50,000 hours or more. Observing so, the Technical Committee had declared the petitioner as technically not qualified and recommended that its presentation and Commercial Bid be not opened.

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15.2. The Technical Bid of the respondent no. 5 was non-responsive, by specifying grounds for such non-responsiveness.

15.3. The respondent no. 4 had submitted the documents as per the requirements of the Bid Document.

15.4. The respondent no. 6 had also submitted the documents as per the requirements of the Bid Document.

16. After pronouncing the Technical Bids of the respondent no. 5 and the respondent no. 6 as responsive, the Technical Committee recommended opening of the Commercial Bids of the respondent no. 5 and the respondent no. 6 only at 3-00 p.m. on 03.03.2021.

17. Having learnt about the decision of the Technical Committee declaring its Technical Bid as non-responsive, the petitioner had submitted a number of representations thereafter, referred in the paragraph 8 above, seeking re-evaluation of its Technical Bid. In those representations, the petitioner had sought to justify with reasons as to why its Technical Bid was not non-compliant.

18. In the meantime, the respondent authorities had opened the Commercial Bids of the two responsive bidders. After evaluation of the Commercial Bids, the Tendering Authority i.e. the Purchaser as per the NIReT had selected the respondent no. 6 as the successful bidder. After declaring the respondent no. 6 as the successful bidder, the respondent no. 3 had issued the Supply Order dated 26.03.2021 asking the respondent no. 6 to execute the contract work of supply and procurement of Integrated Virtual Classroom with Broadcasting Software and Content Sharing Portal at a contract price of Rs. 40,16,43,680/-. It was mentioned therein that the delivery of materials was to be completed within 6 (six) weeks from the date of the said order.

19. A bidder was to submit a Technical Bid and a Commercial Bid. A bidder was asked to furnish, as part of its bid, documents establishing the bidder's eligibility to bid and its Page 13 of 39 qualification as per the criteria mentioned in Clause 1 of Part-A : Introduction of Section II : Instruction to Bidders [ITB] i.e. "Eligibility Criteria for Tender". As per Clause 12 of Part-B : The Bid Documents of the ITB, the bidder shall furnish, as part of its bid, documents establishing the eligibility and conformity to the Bid Document and the services, which the bidder had proposed to supply under the contract as prescribed in Part-C of the ITB in reference to Section VI : Qualification Criteria. Clause 3 of Part-A of the ITB has laid down the Scope of Work.

20. In Section II : Instruction to Bidders [ITB] of the Bid Document, the eligibility criteria for the tender have been laid down in the following manner :-

1. Eligibility Criteria of the Tender:

• Interested Agencies should provide information demonstrating that they have the required qualifications and relevant experience to perform the Services as per the below mentioned qualification criteria.

           Criteria                 Qualification Criteria                 Mandatory
                                                                           documentary
                                                                           evidence     to   be
                                                                           Submitted
           Registered               The bidder must be a company           Relevant proof.
           Legal Entity             registered and incorporated in
                                    India under the Companies Act
                                    1956 or any Central/State PSU.
                                    The bidder should be operating in
                                    India for the fast five years as on
                                    31.03.2020.
           Financial                The bidder should have an average      Audited      Balance
           Criteria                 turnover of Rs. 20.00 (Twenty          Sheet of the bidder.
                                    Crores) Crore in each of the last
                                    three (3) financial years as on
                                    31.03.2020.
           Financial                The bidder should have positive        Audited Profit & Loss
           Stability                net-worth in the last three (3)        Statements of the
                                    financial years as on 31.03.2020.      bidder.

                                                                                Page 14 of 39
 Blacklisting           The      bidder    should    not     have        Self-declaration
                       defaulted/blacklisted/debarred                   regarding the same
                       regarding                             bad        on     the     bidder's
                       performance/delivery in any State                Letter Head.
                       Govt., Central Govt. and PSUs of
                       India at the time of bidding.
Registered             The bidder should submit valid               •   Self-Certified Copy
Legal Entity           documentary proof of GST and the                 of PAN and GST.
                       details of Income Tax Registration
                       (PAN).
Certification          The bidder should have a valid ISO               Copy of certificate
                       9001:2015, ISO 27001:2013 and
                       CMMi level 5 certificate or above
Experience             The       bidder       should        have        Work     order     copy
                       successfully      executed      a   single       must be enclosed.
                       project            pertaining          to
                       IT/ICT/Telecom-
                       Network/Broadcasting Projects of
                       total value of Rs. 15.00 (Fifteen
                       Crores) Cr - Single order in last
                       seven years ending March 31st
                       2020      in      State/Central     Govt.
                       Department.
OEM                    The bidder must attach                           Tender specific MAF
Authorization,         Manufactures Authorization                       Specifications
Quality                certificate specific to this tender,             Compliance
Certificates and       quality certificates (if applicable) &           Quality Certificates
Technical              Technical Compliance Document
Compliance             from major OEMs for providing
                       Comprehensive support and
                       services of the OEM's product
                       covered under the RFP as below:
                   •   Interactive Flat Panel
                   •   Tablet
                   •   Broadcasting Software
                   •   UPS


                                                                               Page 15 of 39
                             All below mentioned for major                 All Quality Certificates for
                            components for the solution to be             Interactive Panel and Tablet
                            submitted as below:                           from    the     OEM     and
                             Interactive Flat     - BIS, Energy Star      Compliance statement for
                             Panel - Quality      Certificate, FCC, CE,   the Broadcasting Software
                             Certificates         CB and RoHS TuV         from the OEM.
                                                  Certificate for
                                                  Flicker free screen
                                                  and low blue light
             Technical       Tablet - Quality     - BIS, CE, RoHS,
             Certificates    Certificates         SAR
                             Broadcasting         - Data Centre
                             Software -           should be ISO, SOC
                             Compliance           Compliant and
                             Reports              GDPR Compliant.

21. Clause 7 of Part-B of Section II : ITB has mentioned about the documents which should comprise the bid. The bid prepared by a bidder shall comprise of the components [separated into a Technical Bid and a Commercial Bid as per the details given in Part-C of Section II : ITB] : (a) A bid form and a Price Schedule completed in accordance with ITB Clauses 8, 9 and 10; (b) Documentary evidence in accordance with ITB Clause 11 that the bidder is eligible to bid and he is qualified to perform the contract if its bid is accepted; (c) Documentary evidence in accordance with ITB Clause 12 that the services to be supplied by the bidder are eligible and conform to the Bid Document; and (d) Bid security furnished in accordance with ITB Clause 13. Clause 12 : "Documents Establishing Goods Eligibility and Conformity to Bidding Documents" has specified that the bidder shall furnish, as part of its bid, documents establishing the eligibility and conformity to the Bid Document and the services, which the bidder proposes to supply under the contract as prescribed in Part-C of the ITB [Ref. : Section VI : Qualification Criteria].

22. By Clause 3.2 of Part-B of the ITB, a bidder was asked to examine all instructions, forms, terms and specifications in the Bid Document. It was made clear that failure to Page 16 of 39 furnish all information required by the Bid Document or submission of a bid not substantially responsive to the Bid Document in every respect would be at the bidder's risk and would result in rejection of the bid. Clause 17 of Part-D of the ITB has laid down the procedure to be followed in respect of opening and evaluation of the Technical Bids.

The bidders' names, bid modifications or withdrawal, the presence or absence of requisite bid security, Technical Bid specification and such other details as the Purchaser i.e. the Tendering Authority, at its discretion, may consider appropriate, would be evaluated. The Commercial Bid would only be opened after the completion of the preliminary evaluation and only for those successful bidders who have qualified in preliminary evaluation based on the Technical Bid. It is mentioned that in evaluating the technical proposals, the Tendering Authority would consider any deviations to the specifications and any deviations, which in the sole opinion of the Tendering Authority, render a bid technically non-responsive the same may result in the bidder's proposal being rejected. It has been laid down in Clause 19.4 of the Bid Document that prior to the detailed evaluation, the Tendering Authority would determine substantial responsiveness of each bid to the Bid Document. For the purpose of the clauses in the Bid Document, a substantially responsive bid is one which conforms all the terms and conditions of the Bid Document without material deviations. The Tendering Authority's determination of a bid's responsiveness is to be based on the contents of the bid itself without recourse to extrinsic evidence. As per Clause 19.5 thereof, if a bid is not substantially responsive it will be rejected by the Tendering Authority and may not subsequently be made responsive by the bidder by correction of the non-conformity. The detailed evaluation of the bid is to be carried out in order to determine whether the bidders are competent enough and whether the bid technically qualifies to the requirements set forth in the eligibility criteria of the bid.

23. A contention is raised by the petitioner to the effect that the CMMi (Level 5) Certificate submitted by the respondent no. 4 along with its Technical Bid, is a counterfeit one. To reinforce such contention, it has sought to bank upon a screenshot taken from a website purportedly of CMMi, appended at page no. 124 of the case papers, for saying that the website does not have any record pertaining to the respondent no. 4. It has Page 17 of 39 also been contended that ordinarily, such CMMi (Level) 5 Certificate should have a validity period of 3 (three) years but the CMMi (Level 5) Certificate submitted by the respondent no. 4 has a validity period of only 1 (one) year. The petitioner has not submitted any document from the CMMi to back up such contentions. The petitioner has not been able to show that a CMMi (Level 5) Certificate is issued only with a validity period of 3 (three) years and in no case, a CMMi (Level 5) Certificate is issued with a validity period of 1 (one) year. On the other hand, the Evaluation Committee as well as the Technical Committee, comprising of experts, had found the CMMi (Level 5) Certificate of the respondent no. 4 with Certificate no. 151220079104 and Certificate issue date as 15.12.2020, appended at page no. 125 of the case papers, as a valid one. The Capability Maturity Model Integration [CMMi] is a process and behavioural model that helps organizations streamline process improvement and encourage productive, efficient behaviours that decrease risks in software, product and service development. The said contention of the petitioner is traversed and denied by the respondent no. 3 by stating that if the petitioner was aggrieved by such allegedly counterfeit certificate, it ought to have initiated criminal prosecution in that regard against the respondent no.

4. The petitioner has, in its affidavit-in-reply, taken a plea that it was incumbent on the Technical Committee to examine the said issue irrespective of whether the petitioner had initiated any criminal prosecution or not. The screenshot, appended at page no. 124 of the case papers, does not have any date, save and except the name of the respondent no. 4 appearing therein. In absence of any convincing materials to substantiate the allegation of a certificate being counterfeit, which could have been obtained and produced by the petitioner considering the fact that the CMMi (Level 5) Certificate is granted by a certifying agency, this Court is not persuaded to hold a view that the CMMi (Level 5) Certificate of the respondent no. 4 is a counterfeit one, when the Technical Committee consisting of experts, did not hold so.

24. Clause 13 of the Bid Document has laid down the conditions with regard to bid security which should be in the form of a demand draft/banker's cheque/fixed deposit/bank guarantee in favour of the respondent no. 3. Clause 14 of the Bid Document has stipulated the period of validity of bids and as per Clause 14.1 thereof, a Page 18 of 39 bid shall remain valid for 90 days after the date of bid opening prescribed by the Tendering Authority. According to the petitioner, the respondent no. 6 had submitted a bank guarantee which had validity of only 85 days after the date of bid opening. An attempt is made by the petitioner to bring distinction between validity and enforcement of the said bank guarantee. A perusal of the bank guarantee no. 0105121BG0000430 issued by the State Bank of India ['the Bank'], appended at page nos. 126-131 of the case papers [Annexure-S to the writ petition], goes to show that though the date of expiry is mentioned as 22.05.2021, a demand or claim under the said bank guarantee can be made on the Bank in writing on or before 22.05.2022. Thus, the bank guarantee submitted by the respondent no. 6 towards bid security does not establish, in any manner, that the bid security of the respondent no. 6 had a validity period of less than 90 days from the date of bid opening. In such view of the matter, this Court has not found any substance in the contention of the petitioner that the bid security submitted by the respondent no. 6 in the form of bank guarantee was non-compliant to the terms and conditions of the Bid Document.

25. Consequently, the contentions of the petitioner that the Technical Bids of the respondent no. 4 and the respondent no. 6 were considered with a different yardstick resulting in denial of a level-playing field and discrimination on that count are found not acceptable. Apart from the afore-mentioned contentions, no other contention has been raised by the petitioner in respect of responsiveness or non-responsiveness of the Technical Bids of the said two participating bidders. Having found such contentions untenable, no further dilation as regards responsiveness or otherwise of the Technical Bids of the said two participating bidders appears necessary.

26. It is settled that the basic requirement of Article 14 of the Constitution of India is fairness in action by the State or its instrumentalities and it is settled that non- arbitrariness in essence and substance is heartbeat of fair play. The said principle is also applicable in a competitive bidding process. It is true that a bidder who has participated in a competitive bidding process at least has a right to equality and fair treatment in the matter of evaluation of the competitive bid offered by him in response to a notice inviting Page 19 of 39 tender in a manner which is transparent and free from any discreet, hidden and surreptitious agenda and in that respect, he is entitled to be treated in a fair, equal and non-discriminatory manner in the matter of evaluation of his bid. A bidder has an enforceable right to that limited extent before the Court and the Court can definitely examine the issue as to whether the petitioner has been treated unfairly or discriminated against.

27. The Technical Committee in its minutes of the meeting held on 01.03.2021 had mentioned that the petitioner was having four legal cases pending against it. The petitioner has provided a summary about the four cases pending against it at page nos. 120-121 of the case papers [Annexure-O to the writ petition] and has asserted that none of the said cases is against a customer or filed by a customer against the petitioner. It is urged that the cases are between partners and vendors which would not have any impact in the bidding process. The respondent no. 3 in its affidavit-in-opposition has mentioned that the pending cases had put a question mark on the credibility of the petitioner as it should have a clean track record with the OEMs, partners, vendors and clients. During the course of hearing, none of the parties has urged on this issue contending that the same ground could be the sole ground to declare responsiveness or non-responsiveness of the petitioner as a bidder. As the said ground has not been urged during the hearing, this Court does not find any necessity to discuss any further on it.

28. Another issue which finds mention in the minutes of the Technical Committee is that the petitioner had submitted a self-declaration in respect of ViewSonic Light Life and as per the brochure, its product's Light Life is 30,000 hours whereas as per the tender, the requirement was 50,000 hours or more. Section VI-Technical Specifications of the Bid Document has prescribed the specifications for Light Life of the Interactive Flat Panel as 50,000 hours or more. The petitioner has asserted that its proposed model supports 50,000 hours and to buttress the same, it has relied upon Annexure-P to the writ petition, appended at page nos. 122-123 of the case papers. Annexure-P is a declaration signed by the authorized signatory of M/s ViewSonic Technologies India Pvt. Ltd., New Delhi i.e. the OEM for the Interactive Flat Panel proposed by the petitioner for Page 20 of 39 the subject-work. The declaration has mentioned that the Light Life of the proposed product is 50,000 hours. The respondent no. 3 in its affidavit-in-opposition, has mentioned with regard to the Light Life of the petitioner's proposed Interactive Flat Panel, that there was contradiction between the brochure and the statement given by the OEM. The brochure stated to have been submitted by the petitioner for its Interactive Flat Panel along with its Technical Bid, has been placed before the Court for perusal. From a look at the said brochure, it is noticed that the technical specifications declared therein for "Backlight Life" of the Interactive Flat Panel is 30,000 hours (Minimum). Thus, it appears, as has been averred by the respondent no. 3, that there is contradiction as regards Light Life of the Interactive Flat Panel proposed by the petitioner for the subject- work. While the brochure mentions "Backlight Life" of the Interactive Flat Panel as 30,000 hours the certificate of the OEM mentions that "Light Life" of the proposed model is 50,000 hours. The brochure has not mentioned any maximum "Backlight Life" or "Light Life" for the Interactive Flat Panel other than the minimum "Backlight Life". This Court does not have the expertise to assume that the Interactive Flat Panel, as mentioned in the brochure, would have maximum "Backlight Life" or maximum "Light Life" of 50,000 hours or more, as prescribed in the Bid Document. From Annexure-P document, it has become evident that the OEM of the petitioner was well aware of the fact that the Bid Document had asked for an Interactive Flat Panel which should have Light Life of 50,000 hours or more. The petitioner has tried to extricate out of the said situation by stating, in its affidavit-in-reply, that as per the tender conditions, the OEM was required to provide only the compliance sheet which had already been provided vide Annexure-P document wherein the OEM had mentioned that the proposed model supports 50,000 hours. Such reply on the part of the petitioner in the face of contradictory declaration in the two documents, as mentioned above, is not found very convincing for acceptance, more particularly, in absence of any traverse pertaining to the declaration made about "Backlight Life" of 30,000 hours (minimum) in the affidavit-in-opposition of the respondent no. 3.

29. Learned Advocate General, Assam has also laid emphasis on non-compliance of the petitioner's bid on the aspects of RoHS certificate and TUV Flicker Free and Blue Page 21 of 39 Light for the Interactive Flat Panel. The learned Counsel for the parties also have laid more emphasis on these two aspects. While the learned Senior Counsel for the petitioner has submitted that the product of the petitioner is compliant of the said two specifications as per the Bid Document the learned Senior Counsel for the respondent no. 6 has vehemently controverted the same.

30. It is iterated that Section II : Instruction to Bidders [ITB] had provided for the "Eligibility Criteria of the Tender". In the criteria for "Technical Certificates", the ITB had, inter alia, stipulated for submission of (a) RoHS Certificate for the Interactive Flat Panel; and (b) TUV Certificate for Flicker Free Screen and Low Blue Light. It had further asked for submission of all Quality Certificates from the OEM for the Interactive Flat Panel.

31. The petitioner has claimed that it had submitted the document appended at page no. 109 of the case papers [Annexure-L to the writ petition] along with his Technical Bid in respect of the matter of Restriction of Hazardous Substances [RoHS] for its proposed Interactive Flat Panel. The Technical Committee had observed that the said document is not a RoHS Certificate and the same is a self certificate.

32. RoHS stands for Restriction of Hazardous Substances. There is a directive of the European Union [EU] which restricts the use of certain hazardous substances within electrical and electronic equipments. The goal is to reduce environmental impact from such equipments. According to the petitioner, the document at page no. 109 of the case papers [Annexure-L to the writ petition] is compliant of the eligibility criteria prescribed for the purpose. It is the contention that the said document has clearly mentioned that the proposed model is exempted from the RoHS, as per exemption granted vide reference nos. mentioned therein. The document i.e. Annexure-L is a Declaration of RoHS compliance given by M/s ViewSonic Corporation i.e. the OEM of the petitioner in respect of the Commercial Touch Display bearing Model no. VS18106 and Model Name : IFP6550-3 whereby it has certified that all the parts supplied by it meets the requirements of EU RoHS directive. In the writ petition, it was pleaded to the afore- stated extent. The Tendering Authority in its affidavit-in-opposition has asserted that the Page 22 of 39 Interactive Flat Panel comes under the list which is impacted by the RoHS directives and as such, a RoHS certification is necessary. It has been contended that the petitioner had only provided a declaration from the OEM for exemption. In response, the petitioner has sought to contend that as per RoHS guidelines, the products which do not exceed the permissible limits are not required/exempted to get RoHS certificate. In the declaration, the OEM has confirmed that all the hazardous substances are within the permissible limits and its proposed product do not contain the substances [EU RoHS 10 Substances] in concentrations greater than the listed maximum limit values. The petitioner has sought to assert that as its OEM is a renowned, quality and health conscious manufacturer in the world, a declaration to that effect is sufficient. It is contended that there is no State-control accredited agency in India to issue RoHS certificate. But the petitioner in its affidavit-in-reply filed on 05.06.2021 has contended otherwise. The petitioner has stated that only a handful of manufacturers including BenQ i.e. the OEM of the respondent no. 4 and the respondent no. 6, are in possession of the RoHS certificates. It is further contended that the said tender condition has been tailor-made and introduced only to reduce competition amongst the bidders and to favour the respondent no. 4 and the respondent no. 6. The above two stances of the petitioner in respect of the RoHS certificate are found at variance diametrically to each other. At one place, it says that there is no requirement to have a RoHS certificate for the Interactive Flat Panel in view of the declaration given by its OEM as regards exemption and no RoHS certification is available in India and at another place, it admits of grant of such RoHS certificates to a handful of manufacturers of Interactive Flat Panel including BenQ i.e. the OEM of the respondent no. 4 and the respondent no. 6, meaning thereby, there are other manufacturers of Interactive Flat Panel, apart from BenQ, who have the RoHS certification. It is also contended that in similar tenders floated by Government bodies, RoHS certificate was not insisted. It is, thus, evident that the petitioner does not have any RoHS certification for its proposed Interactive Flat Panel and against the requirement of the tender condition for Interactive Flat Panel, it had submitted a declaration of RoHS compliance from its OEM. The petitioner has not challenged the tender process on the ground that laying down the condition of RoHS certification for Interactive Panel is arbitrary, tailor-made, discriminatory and introduced only to favour the respondent no.

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4 and the respondent no. 6. From the statement of the petitioner himself, it is evident that there are at least a handful of manufacturers who have been granted RoHS certification for Interactive Flat Panel.

33. The petitioner has also failed to place on record any document relating to other tender processes floated by other Government bodies to support its contention that there was no insistence for RoHS certification. In any view of the matter, absence of any condition regarding RoHS certification in some other tender processes initiated by other Government bodies, does not preclude the Tendering Authority in the case in hand to incorporate a condition for RoHS certification for Interactive Flat Panel as it is the sole authority who is aware of its needs and requirements and to formulate the scope of work. Prescription of the specifications is within the ambit and power of the Tendering Authority and the Court does not interfere with the terms and conditions of a tender document which lays down the eligibility criteria, unless the same are found arbitrary, discriminatory, motivated by bias and against public interest. When the terms and conditions of the Bid Document has specifically prescribed for RoHS certification for a product like Interactive Flat Panel and when there are manufacturers who comply with such requirement, it is not open for a bidder like the petitioner to say that its proposed product is exempted from RoHS certification and to insist for acceptance of a declaration made by its OEM regarding RoHS compliance. This Court does not find the action of the Tendering Authority to insist on submission of RoHS certificate for Interacted Flat Panel by a bidder arbitrary and irrational in any manner. If the Tendering Authority insists for compliance of the terms and conditions of the Bid Document which has laid down the specifications such a decision cannot be termed as arbitrary and irrational. An interference is not called for when a bidder like the petitioner was well aware of such a condition and after being so aware, participated in the competitive bidding process without making any challenge to such condition and, thereafter, turn around to say its product fell in the exempted category requiring no RoHS certification.

34. The petitioner has claimed that the document given by TUV, appended at page nos. 110-113 [part of Annexure-M to the writ petition] and the declaration given by the Page 24 of 39 OEM of the proposed product, appended at page nos. 122-123 [Annexure-P to the writ petition] establish that the petitioner's proposed product for Interactive Flat Panel compliant of both Flicker Free and Low Blue Light. Thus, it calls for a scanning of the afore-mentioned two documents. The document at page nos. 110-113 of the case papers [part of Annexure-M to the writ petition] is under the letterhead of M/s TUV Rheinland (Shenzhen) Co. Ltd. addressed to M/s ViewSonic Corporation. It mentions of a Quotation Number 168089919 dated 02.01.2021. By the said letter, M/s TUV Rheinland (Shenzhen) Co. Ltd. had thanked M/s ViewSonic Corporation for the enquiry of TUV Rheinland services and had enclosed their service quotation according to M/s ViewSonic's requirement. It further mentions that once M/s ViewSonic accepts the quotation by signing and returning the signed copy to M/s TUV Rheinland (Shenzhen) Co. Ltd. the quotation and all its attachment would form a binding contract between the two in respect of the provision of the services under the quotation. The authorized signatory signed the letter by looking forward to offering their services and assisting M/s ViewSonic Corporation in achieving their goals. The service that was sought for was Flicker Free for the product, Commercial Touch Display. The documents annexed at page nos. 114-115 of the case papers [part of Annexure-M to the writ petition] does not appear to be in relation to either Flicker Free or Low Blue Light for the Interactive Flat Panel as it mentions about certification of M/s ViewSonic Corporation by M/s TUV Asia Pacific Ltd. with regard to ISO 9001 : 2015. From the documents annexed at page nos. 116-117 of the case papers [part of Annexure-M to the writ petition], it is noticed that the M/s TUV Rheinland (Shenzhen) Co. Ltd. had certified M/s ViewSonic Corporation's product, Commercial Touch Display with Model Designation : ViewSonic VS18106 to the Standard(s) : UL 60950-1 : 2007 R10.14. Though it speaks of some certification of M/s ViewSonic Corporation's Commercial Touch Display but is silent on the aspects of either Flicker Free or Low Blue Light. The petitioner has also not elaborated on the same, save and except asserting that the documents comply the specifications prescribed in the Bid Document.

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35. It can be noticed that the document appended at page nos. 122-123 of the case papers [Annexure-P to the writ petition] is only a declaration signed by the authorized signatory of M/s ViewSonic Technologies India Pvt. Ltd., New Delhi who is the OEM for the Interactive Flat Panel proposed by the petitioner for the subject-work. It has covered four aspects viz. (a) Specifications; (b) What specifications the Bid Document has stipulated for the Panel; (c) the specifications of M/s ViewSonic's Panel with product no. IFP6550-3; and (d) whether there is compliance of the specifications. As has been mentioned above, in respect of Light Life the Bid Document has prescribed for 50,000 hours or more and M/s ViewSonic's Panel has Light Life of 50,000 hours, as per the declaration. In so far as panel certification for Flicker Free is concerned, the OEM in Annexure-P has mentioned that the Bid Document had asked for TUV certified Flicker Free Panel. The OEM in Annexure-P has mentioned that its Panel has built in functionality inside panel. On the aspect of compliance, the OEM has mentioned that its product is compliant and it has applied for the TUV certificate. As regards panel certification for Low Blue Light, the OEM in Annexure-P has admitted that the Bid Document has prescribed for a TUV certified Low Blue Light Control Panel. But the OEM in Annexure-P has simply mentioned that it is available in its Panel. As regards compliance of TUV certified Panel for Low Blue Light, the OEM has simply mentioned 'Yes' and no certification from TUV is made attached to the case papers.

36. From the above, it has emerged that the OEM of the petitioner i.e. M/s ViewSonic Corporation was aware that the Bid Document had prescribed for an Interactive Flat Panel which should have TUV certification both for Flicker Free and Low Blue Light. In the document at Annexure-P, the OEM of the petitioner has clearly mentioned that TUV certification for Flicker Free in respect of ViewSonic's Interactive Flat Panel with product no. IFP6550-3 has been applied for. The OEM of the petitioner has not said that a ViewSonic's Panel with product no. IFP6550-3 has received certification from TUV for Flicker Free. Though the OEM of the petitioner in Annexure-P has mentioned that its Panel complies with the requirement of Low Blue Light but it has not spoken about any certification of its Interactive Flat Panel from the TUV for Low Blue Light. As the petitioner is emphasizing on the document at Annexure-P, issued by the OEM of the Page 26 of 39 petitioner i.e. M/s ViewSonic Corporation to bring home the point about compliance of its Interactive Flat Panel having TUV certification for Flicker Free and Low Blue Light it is not open for the petitioner to go beyond the statements made by the OEM in the document at Annexure-P. It has already been observed that the TUV certificate appended at page nos. 116-117 of the case papers [part of Annexure-M to the writ petition] is a certificate of M/s TUV Rheinland (Shenzhen) Co. Ltd. for M/s ViewSonic Corporation's product, Commercial Touch Display with Model Designation : ViewSonic VS18106 to the Standard(s) : UL 60950-1 : 2007 R10.14. Thus, TUV certificate at page nos. 116-117 [part of Annexure-M to the writ petition] is found not relatable to Flicker Free and Low Blue Light aspects of Interactive Flat Panel. The respondent no. 6 in its counter affidavit has annexed one TUV Certificate dated 03.09.2020 for Flicker Free in respect of its proposed model for Interactive Flat Panel and one TUV Certificate dated 03.09.2020 for Low Blue Light content in respect of its proposed model for Interactive Flat Panel. The OEM of the respondent no. 6 is one BenQ Corporation. A comparison of the two sets of documents relied on by the petitioner and by the respondent no. 5 makes it apparent that the set of documents of the petitioner do not go to show that the petitioner's proposed model for Interactive Flat Panel had TUV Certification for Flicker Free and Low Blue Light.

37. The Bid Document had prescribed for compliance report for broadcasting software and the data centre should be ISO, SOC and GDPR compliant. The petitioner has contended that it submitted a declaration that the solution it would provide for would be ISO, SOC and GDPR compliant. It is also its contention that nowhere in the Bid Document it was provided that the ISO certificate had to be submitted for Broadcasting Software. Asserting as such, it has referred to the document at page no. 119 of the case papers [Annexure-N to the writ petition]. The respondent no. 3 in its affidavit-in- opposition has traversed the same by stating that the ISO certificate for broadcasting software was not provided. The respondent no. 6 in its affidavit-in-opposition had mentioned that for Broadcasting Software, compliance statement certifying that the data centre is ISO compliant was to be submitted. At the stage of hearing the parties have not advanced any argument touching upon the same. As such, there appears to be no Page 27 of 39 necessity for this Court to deliberate any further on the issue, moreso, when this Court does not have the expertise to examine about the veracity of such claim and counter- claim of indefinite nature on a complex technical specification.

38. The parameters of judicial review in respect of a competitive bidding process initiated by a notice inviting tender are well delineated in many decisions of the Hon'ble Supreme Court of India and of this Court. A survey of some of the decisions cited at the bar can be made at this stage. In the three-Judge Bench decision of the Hon'ble Supreme Court of India in Tata Cellular vs. Union of India, (1994) 6 SCC 651, it has been observed as under :-

"94. The principles deducible from the above are :

(1) The modern trend points to judicial restraint in administrative action. (2) The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made.

(3) The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.

(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of "Wednesbury principle" of reasonableness and the decision should be free from arbitrariness, not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure."

39. In Raunaq International Ltd. vs. I.V.R. Construction Ltd. and others, reported in (1999) 1 SCC 492, a tender was floated for two units of a Thermal Power section with the Bid Document laying down the qualification criteria in order to assess the bidders' Page 28 of 39 capability and capacity to perform. In that context, the Hon'ble Supreme Court has observed as under :

9. The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision, considerations which are of paramount importance are commercial considerations. These would be :

      (1)      The price at which the other side is willing to do the work;
      (2)      Whether the goods or services offered are of the requisite specifications;
      (3)      Whether the person tendering has the ability to deliver the goods or services as

per specifications. When large works contracts involving engagement of substantial manpower or requiring specific skills are to be offered, the financial ability of the tenderer to fulfil the requirements of the job is also important;

(4) the ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality;

(5) past experience of the tenderer, and whether he has successfully completed similar work earlier;

(6) time which will be taken to deliver the goods or services; and often (7) the ability of the tenderer to take follow up action, rectify defects or to give post-

contract services.

Even when the State or a public body enters into a commercial transaction, considerations which would prevail in its decision to award the contract to a given party would be the same. However, because the State or a public body or an agency of the State enters into such a contract, there could be, in a given case, an element of public law or public interest involved even in such a commercial transaction.

10. What are these elements of public interest ? (1) Public money would be expended for the purposes of the contract; (2) The goods or services which are being commissioned could be for a public purpose, such as, construction of roads, public buildings, power plants or other public utilities. (3) The public would be directly interested in the timely fulfilment of the contract so that the services become available to the public expeditiously. (4) The public would also be interested in the quality of the work undertaken or goods supplied by the tenderer. Poor quality of work or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times in re-doing the entire work - thus involving larger outlays or public money and delaying the availability of services, facilities or goods, e.g. a delay in commissioning a Page 29 of 39 power project, as in the present case, could lead to power shortages, retardation of industrial development, hardship to the general public and substantial cost escalation.

11. When a writ petition is filed in the High court challenging the award of a contract by a public authority or the State, the court must be satisfied that there is some element of public interest involved in entertaining such a petition. If, for example, the dispute is purely between two tenderers, the court must be very careful to see if there is any element of public interest involved in the litigation. A mere difference in the prices offered by the two tenderers may or may not be decisive in deciding whether any public interest is involved in intervening in such a commercial transaction. It is important to bear in mind that by court intervention, the proposed project may be considerably delayed thus escalating the cost far more than any saving which the court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. Therefore, unless the court is satisfied that there is a substantial amount of public interest, or the transaction is entered into mala fide, the court should not intervene under Article 226 in disputes between two rival tenderers.

15. Where the decision-making process has been structured and the tender conditions set out the requirements, the court is entitled to examine whether these requirements have been considered. However, if any relaxation is granted for bona fide reasons, the tender conditions permit such relaxation and the decisions is arrived at for legitimate reasons after a fair consideration of all offers, the court should hesitate to intervene.

40. In Michigan Rubber (India) Limited vs. State of Karnataka and others , reported in (2012) 8 SCC 216, after a discussion on the principles laid down in a number of earlier decisions including Tata Cellular (supra), Raunaq International Ltd. (supra), Jagdish Mandal vs. State of Orissa, (2007) 12 SCC 517, the Hon'ble Supreme Court has observed in the following manner :-

23. From the above decisions, the following principles emerge:

(a) The basic requirement of Article 14 is fairness in action by the State, and non-

arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within Page 30 of 39 the bounds of reasonableness, it would be legitimate to take into consideration the national priorities;

(b) Fixation of a value of the tender is entirely within the purview of the executive and courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by Courts is very limited;

(c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of tendering authority is found to be malicious and a misuse of its statutory powers, interference by Courts is not warranted;

(d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and

(e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by Court is very restrictive since no person can claim fundamental right to carry on business with the Government.

20. Therefore, a Court before interfering in tender or contractual matters, in exercise of power of judicial review, should pose to itself the following questions :

(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or 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"; and

(ii) Whether the public interest is affected.

If the answers to the above questions are in negative, then there should be no interference under Article 226.

41. It has been observed in Central Coalfields Limited vs. SLL-SML (Joint Venture Consortium), (2016) 8 SCC 622, that the party issuing the tender (the employer) has the right to enforce the terms of the tender strictly. If a party approaches a Court for an order restraining the employer from strict enforcement of the terms of the tender, the Court would decline to do so. The Courts shall not countenance interference with the decision of the employer at the behest of an unsuccessful bidder in respect of a technical or procedural violation. The decision in Jagdish Mandal vs. State of Orissa, (2007) 14 Page 31 of 39 SCC 517, is for the proposition that evaluating tenders and awarding contracts were essentially commercial functions and if the decisions relating to award of contract was bona fide and was in public interest, the Courts should not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer was made out. The power of judicial review is not to be exercised to protect private interest at the cost of public interest or to decide contractual dispute. Whether a term of NIT is essential or not is a decision taken by the employer which should be respected and the Courts should not take over the decision making function of the employer and make a distinction between essential and non-essential terms contrary to the intention of the employer and thereby re-write the arrangement. It has reemphasized the well settled principle that where the power is given to do a certain thing in a certain way the thing must be done in that way or not at all and other methods of performance are necessarily forbidden, which principle should also be followed in respect of bid documents.

42. The Hon'ble Supreme Court of India in Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818, has held as under :

"14. We must reiterate the words of caution that this Court has stated right from the time when Ramana Dayaram Shetty v. International Airport Authority of India [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489] was decided almost 40 years ago, namely, that the words used in the tender documents cannot be ignored or treated as redundant or superfluous -- they must be given meaning and their necessary significance. In this context, the use of the word "metro" in Clause 4.2(a) of Section III of the bid documents and its connotation in ordinary parlance cannot be overlooked.

15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the Page 32 of 39 tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given."

43. In a recent decision rendered in Civil Appeal No. 4107/2020 [Galaxy Transport Agencies, Contractors, Traders, Transports and Suppliers vs. New J.K. Roadways, Fleet Owners and Transport Contractors and others], decided on 18.12.2020, by a three- Judges Bench of the Hon'ble Supreme Court of India, it has been reiterated by referring to the earlier decisions in Afcons Infrastructure Limited (supra), Jagdish Mandal (supra), Montecarlo Limited vs. NTPC Limited, (2016) 15 SCC 272 and others that the authority who has authored the tender document, is the best person to understand and appreciate its requirements and interpret its documents. The Constitutional Court must defer to the said understanding and appreciation of the tender document and if two interpretations are possible then the interpretation of the author must be respected. In the competitive commercial field the technical bids pursuant to the notice inviting tenders are scrutinized by the technical experts in order to ensure objectivity. Bidder's expertise and technical capability and capacity are assessed by the experts. It has, at the same time, been emphasized that it does not mean that the tenders will escape scrutiny of judicial review. Exercise of power of judicial review would be called for if the approach is arbitrary or mala fide or procedure adopted is meant to favour one. The decision making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the Court should follow the principle of restraint. Technical evaluation or comparison by the Court would be impermissible.

44. The petitioner has laid stress in the contention that the eligibility criteria were provided in Section II of the ITB. According to the petitioner, the ITB did not specify about any certification agency from which such certificates were to be procured. Since the petitioner provided for the declaration and compliance statement from the OEM, the rejection of its Technical Bid at the stage of evaluation on the ground that no certifying agency had issued the certificates in question resulted in denial of a level playing field. It is the contention of the petitioner that the tender conditions were vague and in view Page 33 of 39 of such vagueness in the eligibility criteria and about the requirements for submission of certificates, its Technical Bid could not have been declared as non-responsive. Such contention made on behalf of the petitioner is to be examined qua the contents of the Bid Document. Apart from laying down the qualification criteria in Clause 1 : "Eligibility Criteria of the Tender" in Section II of the ITB, the Tendering Authority has, inter-alia, specifically laid down the Technical Specifications for the Interactive Flat Panel in Section VI of the ITB. For ready reference, the relevant portions of it pertaining to the Interactive Flat Panel are extracted hereunder :-

"SECTION VI - TECHNICAL SPECIFICATIONS"

2. Panel Type Interac tive Panel size Flat Panel Resolution (pixel) Panel Panel Brightness (typical) (nits; cd/m2 Panel Response Time (ms) Light Life (typical) (hrs) SOC Processor inbuilt System Memory Inbuilt Storage Inbuilt OS Inbuilt Screen Sharing on Panel Account Management System (AMS) Broadcast Software Solution Maximum (Watt) - Power Touch Technology Touch Capacity Touch Accuracy HDMI Input/Output SPDIF Output USB (Type A) RS232 Input Internal Speaker - Inbuilt Remote Controller Panel Certification - Flicker Free Panel Certification - Low Blue Light Standard/Quality Certifications IPS Panel 65 inches or more UHD 3840 x 2160 350 nits or Higher 8ms or faster 50000 or more Dual core A73+Dual core A53/1.5GHz or Higher 3GB or Higher 32GB or Higher Android 8.0 or later Option to have upto 4 simultaneous source feed shared on Panel Active Directory Integration for Individual account login & Email configuration for Panel In Built with option for Having Text, Audio, Video message Broadcast 250W or lower IR Touch Page 34 of 39 20 points in Windows and 10 points in Android or higher ±2.0mm 3 HDMI Ports or more Minimum 1 Port 4 USB Ports or more Minimum 1 Port Front Facing continuous Sound Bar with 10Wx2=20 W IR based Remote TuV Certificate Flicker Free Screen TuV Certified Low Blue Light Control BIS, Energy Star Certificate, FCC, CE, CB and RoHS

45. In Reliance Energy Ltd. (supra), it has been held that "level playing field" is an important concept while construing Article 19(1)(g) of the Constitution of India and the said doctrine is, however, subject to public interest. When tenders are invited, the terms and conditions must indicate with legal certainty, norms and bench marks. If there is vagueness or subjectivity in the said norms it may result in unequal and discriminatory treatment. It may violate doctrine of "level playing field". It has been further held that as long as the norms are clear and properly understood by the decision-maker and the bidders and other stake holders, uncertainty and thereby breach of the rule of law will not arise. Reverting back to the facts of the case, it is found from the above table in Section VI : Technical Specifications that the Bid Document has specifically laid down the terms and conditions on the aspects of RoHS certification and TUV certification for Flicker Free Screen of the Interactive Flat Panel and there was no ambiguity or vagueness in those aspects. From the pleadings of the petitioner itself, as discussed above, it is noticed that the petitioner was well aware of such requirements. As such, the decision in Reliance Energy Ltd. (supra) is found not applicable to the facts and circumstances of the case. The other two decisions in Kumari Shrilekha Vidyarthi (supra) Page 35 of 39 and Mahabir Auto Sales (supra) do not relate to disqualification of a bidder for non- responsiveness of its bids at the stage of evaluation in a competitive bidding process initiated by a notice inviting tender laying down the eligibility criteria for the bidders. The said two decisions have dealt mainly on the aspect of arbitrariness on the touch stone of Article 14 of the Constitution of India leading to termination of a contract/an appointment. The fact situation obtaining in the case in hand is not in respect of termination of any contract/any appointment. The applicability of Article 14 of the Constitution of India is to be applied in the context of treatment of a bidder like the petitioner qua the terms and conditions laid down for the eligibility criteria of the bidders. As such, the said two decisions in Kumari Shrilekha Vidyarthi (supra) and Mahabir Auto Sales (supra) are of no assistance to the cause of the petitioner.

46. It has been stated at the bar that TUV is a world's leading testing service provider which gives certification in respect of a number of technical parameters. Contrary to the contentions of the petitioner about vagueness regarding certification, Section VI of the ITB has specifically prescribed the Technical Specifications for the Interactive Flat Panel. It has been clearly stipulated that the Interactive Flat Panel should have a TUV certified Flicker Free screen. It has been further stipulated that the Interactive Flat Panel should have a TUV certified Low Blue Light Control. As regards standard/quality certifications for Interactive Flat Panel, Technical Specifications also requires RoHS certification. In such view of the matter, this Court is not persuaded to arrive at a view that the Bid Document is vague or silent as regards certification of the Interactive Flat Panel for (i) Flicker Free Screen, (ii) Low Blue Light Control, and (iii) RoHS. In the case in hand, the petitioner had submitted a declaration by the OEM in respect of its product, Interactive Flat Panel for Flicker Free Screen and Low Blue Light Control, without any certification from the certifying agency, TUV which the Tendering Authority had specifically asked for in the Bid Document. A self-declaration by the OEM in respect of its product is one thing and a certification from an independent and third party testing agency is a completely different thing.

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47. The respondent no. 3 i.e. the Tendering Authority in its affidavit-in-opposition has explained the reasons behind incorporation of the terms and conditions, relatable to the grounds of rejection of the Technical Bid of the petitioner, to substantiate as to why those terms and conditions require compliance.

47.1. The RoHS (Restriction of Hazardous Substances) is a product level compliance in electronic and electrical products for the use of certain hazardous components in electronic and electrical components. The substances banned under RoHS are Lead (Pb), Mercury (Hg), Cadmium (Cd), Hexavalent Chromium (CrVI), Polybrominated Biphenyls (PBB) and Polybrominated Biphenyls Ethers (PBDE). RoHS compliance is meant to reduce the amount of these hazardous substances in electronic manufacturing. RoHS is an important compliance, according to the Tendering Authority, as the goal of RoHS is to reduce the environmental effects and health impact of electronic products. All products which come under the RoHS impacted categories must pass the compliance. RoHS compliance, according to the Tendering Authority, is very important for products which are to be used in the schools to avoid any impact on the children. In absence of the RoHS Certificate, the product may result in health hazards. The RoHS Certificate is issued to ensure the control of usage of the hazardous substances in electronic equipments and such certificate is important for the child health safety concerns. In the list of electrical and electronic products which require compliance of RoHS, the Interactive Panel is also included and impacted by the RoHS directives.

47.2. The Interactive Panels with TUV Certificates for Flicker Free and Low Blue Light are certified to ensure that they do not harm the eye sight of the children during uses of the equipment in the classroom and the same is important for the health of the children.

48. The Tendering Authority has explained the reasons why the Interactive Flat Panel to be supplied should conform to the standards laid down with specific certification from the certifying agencies. As the Interactive Flat Panel are to be supplied to students of the schools the Tendering Authority taking note of the adverse effects from an Page 37 of 39 Interactive Flat Panel due to non-compliance of a Flicker Free Screen in the Interactive Flat Panel, had asked for a certification from the TUV. Similarly, it had asked for RoHS certification for the Interactive Flat Panel. No irrationality or unreasonableness can be attributed to such a decision and if the Tendering Authority goes for strict compliance of the Technical Specifications, this Court does not find any arbitrariness, irrationality, discrimination or denial of any level playing field in such decision.

49. The Tendering Authority in the case in hand, has insisted for the compliance of the terms and conditions laid down in the NIReT dated 17.02.2021. No deviation is found to be made by the Tendering Authority from the said terms and conditions during the evaluation process. The Technical Bid of the petitioner was found non-compliant of certain terms and conditions thereof. No exception can be taken if the Technical Committee, consisting of experts, and for that matter, the Tendering Authority have treated those terms and conditions to be essential ones, which cannot be deviated from. Insistence for certification from a certifying agency on the aspects of RoHS and Flicker Free Screen for the Interactive Flat Panel in order to assure itself that the Interactive Flat Panel would not cause any adverse effect on the children of 628 nos. of schools cannot be termed to be arbitrary and irrational in any manner. The element of public interest is found to be present behind such decision. As a result, the challenge to the decision to declare the Technical Bid of the petitioner as non-responsive being non- compliant of the terms and conditions of the tender is found devoid of any merit. In a competitive bidding process, it is the terms and conditions of the Bid Document which decide the fate of a bidder in fray and when the other bidders had submitted the RoHS Certificate, as had been asked for, a plea regarding exemption of the petitioner's product by the European Union [EU] is not sustainable. As in the competitive bidding process initiated by the NIReT dated 17.02.2021, the petitioner has been tripped in the race to become the successful bidder at the mid-way stage of Technical Bid evaluation because of non-compliant nature of its bid the challenge to the selection of the successful bidder from out of the bidders who reached and crossed the Commercial Bid opening stage, is not sustainable when the decision taken by the Technical Committee consisting of experts, and subsequently accepted by the Tendering Authority is upon due Page 38 of 39 consideration of the bids submitted by those bidders on their own merits and when it is found that the successful bidder had complied with the essential terms and conditions laid down. The decision-making process is not found vitiated in any manner in relation to the terms and conditions prescribed in the NIReT and the Bid Document. In view of reaching such a finding discussion on other issues raised by the parties is found redundant.

50. For all the aforesaid reasons, the writ petition is found devoid of merits and consequently, the same is dismissed. The interim order dated 14.06.2021 stands recalled. There shall, however, be no order as to cost.

JUDGE Comparing Assistant Page 39 of 39

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