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Page No.# 9/39 3.8. The writ petition, W.P.[C] no. 4980/2022 was moved on 18.08.2022. This Court while issuing notices to the respondents making the same returnable on 31.08.2022, had by order dated 18.08.2022, as an interim measure, directed to the respondent authorities not to take any further steps in the process of re- tendering, for the purpose of balancing the equities.

3.9. Subsequent to the Order bearing no. DME/110/2014/15541 dated 21.07.2022 of the respondent no. 3 and the decision to cancel the Tender Notice [e-Tender] dated 27.05.2022 taken by the Tender Committee for Outsourcing of Dietary Services [the respondent no. 6] in its Meeting held on 26.07.2022, a Re-Tender Notice [e-Tender] dated 05.08.2022 has been published by the respondent no. 5 whereby e-Tenders have once again been invited on-line through e-procurement system via website - www.assamtenders.gov.in for 'Outsourcing of Dietary Services' for patients wherever it is deemed fit to cater to the day-to-day requirements of the FAAMC&H, Barpeta. It is, thus, noticed that the Re-Tender Notice has already been issued prior to passing of the order dated 18.08.2022 in the writ petition, W.P.[C] no. 4980/2022. Challenging the Tender Notice [e-Tender] dated 05.08.2022, the petitioner has instituted the second writ petition, W.P.[C] no. 54/2023.

7. Per contra, Mr. Gogoi, learned Standing Counsel, Health & Family Welfare Department has refuted the contention regarding want of power and authority on the part of the respondent no. 3 to give its view or observation in connection with the bidding process for 'Outsourcing of Dietary Services' at Government Medical College & Hospital, with the FAAMC&H being one of them. The respondent no. 3 being the Director of Medical Education, Assam, is not an authority external to the bidding process whereby bids were/are being invited for 'Outsourcing of Dietary Services' for patients at the FAAMC&H, Barpeta. It is his contention that the respondent no. 3 was/is involved all throughout the bidding processes as he is the Head of the Department for all Government Medical Colleges and Hospitals in the State. It is his submission that the Rate Page No.# 13/39 Contracts entered earlier and the Rate Contract contemplated to be entered either by the Tender Notice [e-Tender] dated 27.05.2022 or by the Tender Notice [e-Tender] dated 05.08.2022 were/are not statutory in character and the bidding process is not guided by any statutory provision. As such, the ratio deducible from the decisions referred to on behalf of the petitioner is not attracted in the bidding processes under reference. To support his contention, Mr. Gogoi has also produced the official file relating to the bidding processes under reference. By referring to the terms and clauses of the Tender Notice [e- Tender] dated 27.05.2022, more particularly, Clause 17.5 thereto, Mr. Gogoi has submitted that the authority in the FAAMC&H, Barpeta had every right to cancel the bidding process without assigning any reason thereof. Notwithstanding Clause 17.5, the authority has assigned good and valid reasons for cancelling the first bidding process. The decision to go for the bidding process afresh vide the Tender Notice [e-Tender] dated 05.08.2022 is for the purpose of wider participation. It is strenuously contended that formulation of the terms and conditions of tender is exclusively reserved for the tendering authority. It is his further contention that merely because the respondent no. 3 had considered the aspects highlighted by two participant bidders as regards the experience criteria specified for the first bidding process, whose Technical Bids did not fulfill the experience criterion set forth therein, it cannot be said that the respondent no. 3 had acted at their behest. The respondent no. 3 after considering the entire aspects including non- fulfillment of the experience criteria by more than half of the participant bidders, had reached the opinion that the experience criterion incorporated in the Tender Notice [e-Tender] dated 27.05.2022 was restrictive in nature and relaxation in the experience criterion would result in wider participation and Page No.# 14/39 there might be other bidders who though competent in every aspect, might not have the experience of providing Dietary Service in any Government Medical College and Hospital in the State of Assam. Mr. Gogoi, learned Standing Counsel, Health & Family Welfare Department has also highlighted the fact that till few years ago, there were only three number of Government Medical Colleges & Hospitals in the entire State of Assam at Guwahati, Dibrugarh and Silchar and in the year 2017, there were only six State Medical Colleges & Hospitals, and naturally, there were few persons who had the eligibility criterion of having experience of providing Dietary Services in such Medical Colleges & Hospitals. On the other hand, there is a Government Civil Hospital in every district in the State of Assam since long. It is his contention that only the experience criterion is relaxed in the Tender Notice [e-Tender] dated 05.08.2022 but there is no relaxation in so far as the criteria regarding quality, financial ability and other aspects are concerned. In so far as the petitioner is concerned, there is no question of any prejudice because he has not been made ineligible to participate in the bidding process initiated by the Tender Notice [e-Tender] dated 05.08.2022.

9. I have given due consideration to the submissions advanced by the learned counsel for the parties and have also gone through the materials on record, brought by the parties through their pleadings. I have also gone through the documents in the office file produced by the learned Standing Counsel, Health & Family Welfare Department and the decisions cited at the Bar.

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10. The bidding process by the Tender Notice [e-Tender] no. FAAMCH/eT_DST[2]/1783/2022/1056 was initiated on 27.05.2022 for 'Outsourcing of Dietary Services' for patients at the FAAMC&H, Barpeta. As per Clause 20.7 of the Tender Notice [e-Tender], the FAAMC&H, Barpeta intended to enter into an Rate Contract for 'Outsourcing of Dietary Services' for patients for a period of 1 [one] year and extension of tenure up to maximum 6 [six] months might be allowed, subject to mutual agreement at the same rate and terms. After the last date of submission of bids was over, the Technical Bids of the bidders were opened on 23.06.2022 by the Tender Evaluation Committee constituted for the purpose and it was found that there were 7 [seven] participant bidders in the bidding process. After analysis of the tender documents submitted by all the 7 [seven] participant bidders, the Tender Evaluation Committee found that only 3 [three] nos. of participant bidders had the experience of supplying dietary articles to any State Government Medical College & Hospital. Out of the remaining 4 [four] participant bidders, 3 [three] nos. of bidders were found to have submitted documents about experience of supplying dietary articles to the Government Hospitals and the 7 th bidder submitted documents regarding experience of supplying dietary articles in unclassified hospital in a State other than Assam. Out of the 7 [seven] participant bidders, one of the bidders was a registered MSME having a woman entrepreneur, that is, the respondent no. 8 herein. As the respondent no. 8 had sent an e-mail on 28.06.2022 to the respondent no. 4 seeking extension of privilege as an MSME unit with woman entrepreneur and relaxation in the experience criterion contained in Clause 14[c] of the Tender Notice [e-Tender] dated 27.05.2022, the respondent no. 4 on behalf of the Tender Committee of Page No.# 17/39 the FAAMC&H, Barpeta [the respondent no. 6] forwarded the matter to the respondent no. 3 by a letter dated 07.07.2022 with the request to give necessary suggestion whether experience of supplying diet to the Government Civil Hospital[s] would be eligible at the stage of Technical Bid evaluation. In response, the respondent no. 3 wrote to the respondent no. 4 on 13.07.2022 mentioning that as the process had been completed and the term of the earlier Rate Contract had already been expired, the respondent no. 4 could conclude the bidding process in observance of the tender clauses without any deviation by ensuring that there were at least 3 [three] nos. of technically qualified bidders. The respondent no. 4 was requested to ensure validity of the Rate Contract as per the Assam Public Procurement Rules, 2020 ['the APP Rules, 2020', for short]. Subsequent thereto, the respondent no. 7 herein on 18.07.2022 and the respondent no. 8 herein on 19.07.2022, both participant bidders in the bidding process initiated by the Tender Notice [e-Tender] dated 27.05.2022, submitted Representations to the respondent no. 3 and the respondent no. 4 highlighting certain aspects in connection with the first bidding process. The respondent no. 7 had requested for not to restrict the experience criterion only for bidders having experience of supplying Dietary Services to the State Government Medical Colleges & Hospitals and to make open the bidding process to bidders having experience of providing Dietary Services to the Government Civil Hospitals. On the other hand, the respondent no. 8 apart from terming the experience criterion of providing Dietary Services at the State Government Medical Colleges & Hospitals for 3 [three] years as a restrictive one, also sought for relaxation to registered MSME units and preference for woman entrepreneurs. The respondent no. 3 on receipt of the two Representations, wrote back to the respondent no. 4 vide its letter dated Page No.# 18/39 21.07.2022 with the observations that the tender clauses were not open for prospective bidders and in the bidding process initiated by the Tender Notice [e-Tender] 27.05.2022, there was no provision for any pre-bid meeting to make the bidding process market friendly. With such observations, the respondent no. 4 was requested to consider for re-tendering as per Clause 17.5 of the Tender Notice [e-Tender] dated 27.05.2022 with incorporation of suitable clauses with a view to have a larger participation of bidders and with the provision of a pre-bid meeting. A meeting of the Tender Evaluation Committee consisting of 9 [nine] nos. of members with the respondent no. 4 as the Chairman and the respondent no. 5 as the Member Secretary, was convened on 26.07.2022. In the said meeting, the Committee considered the observations made by the respondent no. 3 in its letter dated 21.07.2022 and upon deliberation, the Committee decided to cancel the bidding process initiated by the Tender Notice [e-Tender] 27.05.2022 by invoking Clause 17.5 thereof. Consequently, a decision was also taken to initiate a re-tender process immediately.

13.5. Thus, the question which requires consideration is whether the aforesaid principles would be applicable in the case in hand. It is trite to mention that a decision is an authority for what it decides and not what can be logically deduced therefrom and even a slight distinction in fact or an additional or different fact may make a lot of difference in the decision-making process.

14. It is to be borne in mind that the proposed Rate Contract to be entered into by the State respondents with the successful bidder at the end of the bidding process is not a statutory contract. The Rate Contract would not become statutory because under the contract, the contractor i.e. the successful bidder would provide the Dietary Services to the patients at the FAAMC&H, Page No.# 25/39 Barpeta or because the Rate Contract would be executed by the authorities at the FAAMC&H, Barpeta on one part and the contractor i.e. the successful bidder on the other part. The bidding process leading to the execution of the Rate Contract is not governed by any statutory provision and as such, the question of wielding any statutory power by any of the authorities involved in the bidding process does not arise to bring the decision in The Purtabpure Co., Ltd. [supra] in the scenario. From the office file produced by the learned Standing Counsel, Health & Family Welfare Department, it is noticed that in the year 2017, the respondent no. 5 as per instruction given in an e-mail dated 27.06.2017 of the respondent no. 3, published a Notice Inviting Tender [NIT] bearing no. FAAMCH/DIET_SERVICES/1069/2017/76 on 10.07.2017 for 'Outsourcing of Dietary Services' for patients at the FAAMC&H, Barpeta for entering into a Rate Contract for 2 [two] years with approved licensed dietary service providers. For examination of tenders for Outsourcing of Dietary Services at the FAAMC&H, Barpeta invited by Tender Notice dated 10.07.2017, a Tender-cum-Technical Committee was constituted by the respondent no. 4 herein by an Office Order dated 24.07.2017. The Tender-cum-Technical Committee opened the bids received from three participant bidders including the petitioner herein, in response to the NIT dated 10.07.2017. After evaluation of the bids, the petitioner herein was selected as the successful bidder [L-1] and he was intimated to that effect by the respondent no. 5 by a letter dated 01.08.2017. Forwarding the tender papers including the comparative statement and intimating the selection of the petitioner as the successful bidder [L-1] by a letter dated 07.09.2017, the respondent no. 5 sought approval for the same from the respondent no. 3. The respondent no. 3 by his letter dated 23.10.2017 had forwarded a set of guidelines to the Principal-cum-Chief Page No.# 26/39 Superintendent of all the 6 [six] Medical College & Hospitals in Assam including the respondent no. 4 herein, with a direction to execute the contracts incorporating the guidelines therein. On the basis of the guidelines forwarded by the respondent no. 3 vide his letter dated 23.10.2017, the respondent no. 5 informed the petitioner herein i.e. the successful bidder [L-1] in the bidding process pursuant to the NIT dated 10.07.2017 that few clauses, indicated therein, which were set forth by the respondent no. 3 in its letter dated 23.10.2017, would be added in the proposed Rate Contract to be entered into with the petitioner for supply of Dietary Services to the indoor patients at the FAAMC&H, Barpeta. Thereafter, a Rate Contract was executed between the FAAMC&H, Barpeta and the petitioner for a period of 2 [two] years up to 31.07.2019. On 22.07.2019, the petitioner by a letter of even date sought for extension of the Rate Contract for another 2 [two] years and the respondent no. 5 by his letter dated 31.07.2019 extended the tenure of the Rate Contract for another 2 [two] years w.e.f. 01.08.2019 with a request to execute a contract agreement on agreed terms and conditions. Having learnt about extension of the Rate Contract for another 2 [two] years in such manner, the respondent no. 3 wrote to the respondent no. 4 on 13.02.2020 to inform that such extension of Rate Contract for providing Dietary Service to the indoor patients at the FAAMC&H with the existing vendor for another 2 [two] years was contrary to all financial norms and, therefore, was not acceptable. The respondent no. 4 was thereby, instructed to float fresh e-Tender immediately for supply of Dietary Services at the FAAMC&H, Barpeta and to complete the process expeditiously after discovery of fresh approved rates. Immediately thereafter, the respondent no. 4 published a Tender Notice [e-Tender] on 14.03.2020 inviting e-Tenders through on-line for Outsourcing of Dietary Page No.# 27/39 Services for patients at the FAAMC&H, Barpeta. A Tender-cum-Technical Committee was constituted by an Office Order dated 04.04.2020. The said bidding process was concluded with the award of contract for Outsourcing of Dietary Services for the patients at the FAAMC&H by an order dated 06.05.2020 of the respondent no. 4 in favour of the petitioner herein on his emerging as the successful bidder [L-1]. By order dated 06.05.2020, the petitioner herein was awarded the Rate Contract for a period of 2 [two] years. As the period of Rate Contract entered thereby was set to expire on 10.05.2022, the respondent no. 4 by his letter dated 27.04.2022 requested the respondent no. 3 to consider for giving extension of the agreement for Dietary Services provided by the petitioner firm for a period of 3 [three] months or till completion of the bidding process, whichever was earlier, for continuation of diet supply to the admitted patients at the FAAMC&H, Barpeta. The respondent no. 3 responded vide his letter dated 20.05.2020 whereby he returned the draft bid documents for further necessary action from the end of the respondent no. 4, subject to compliance of each clauses of the Rate Contract and the provisions of the APP Rules, 2020 and to complete the bidding process at the earliest. The extension of the existing system was also allowed for a period of 1 [one] month or till the conclusion of the bidding process, whichever was earlier. Thus, it has emerged from the above events that the respondent no. 3 was involved in the bidding process initiated for Outsourcing of Dietary Services at the FAAMC&H, Barpeta since the year 2017 onwards. The respondent no. 3 is the Head of the Department for all Medical Colleges & Hospitals and other health institutions in the State under the Directorate of Medical Education, Assam and the respondent no. 3 is the immediate Controlling Officer for the Medical Colleges & Hospitals under the State Page No.# 28/39 Directorate of Medical Education. It is within the authority and jurisdiction of the Director of Medical Education, Assam to make a scrutiny and examination of the bidding processes undertaken by the State Medical Colleges & Hospitals and other health institutions for reasonableness of the discovered rates prior to issuance of approval. In view of the role assigned to the Director of Medical Education, Assam, the principles deducible from the two decisions in Ackruti Plates Private Limited [supra] and Sri Nabin Chandra Hatimuria [supra], relied on by the petitioner, are found not applicable to the case in hand.