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2002 Supreme(Cal) 87
High Court Of Calcutta
Asok Kumar Ganguly
GOURANGA LAL CHATTERJEE - Appellant
Versus
STATE OF WEST BENGAL - Respondent
W. P. 2266 Of 2001
Decided On : 02/12/2002
ABHIJIT CHATTERJI, ANANTH BANDHU DUTTA, BIKASH RANJAN BHATTACHARJI, PRABAL MUKHERJI, Samaraditya Pal, SAMIR KUMAR CHAKRABORTY, Satya Brata Chakroborty
The contracting power of the State is subject to Article 14 and the said Article is an antithesis to all shades of arbitrary and unreasonable power.
Headnote:
CONSTITUTIONAL LAW - ARTICLE 14 - TENDERS - CONSTRUCTION OF BELGHORIA EXPRESS WAY - BID SECURITY - VALIDITY PERIOD - AMENDMENT - FAIRNESS AND REASONABLENESS - JUDICIAL REVIEW - ULTRA VIRES.
Fact of the Case:
The petitioners challenged the decision of the Tender Evaluation Committee recommending the acceptance of the tender submitted by the respondents for the construction of Belghoria Expressway. The main ground was that the tender submitted by the respondents did not conform to the requirements stipulated in the Instruction to the Bidders (ITB).
Finding of the Court:
The court held that the action of the State respondents in accepting the tender of the respondents was not unreasonable or unfair. The court found that the State respondents had followed 'relevant, rational and non-discriminatory standards' and that is all what is required of them. The court also held that the conferment of arbitrary power in the first part of Clause'32 namely the employer's right to accept or reject any tender without informing the affected bidder of the grounds of such rejection is ultra vires Article 14.
Issues: Whether the bid security furnished by the respondents was valid and in order.
Ratio Decidendi: The court held that the bid security furnished by the respondents was valid and in order. The court found that the intention of the respondents was to keep the bid security valid upto 165 days after the deadline for submission of bids. The court also found that the errors in the bid security were not material and that they could be corrected before the evaluation of the bid. The court further held that the conferment of arbitrary power in the first part of Clause'32 namely the employer's right to accept or reject any tender without informing the affected bidder of the grounds of such rejection is ultra vires Article 14.
Final Decision: The writ petition was dismissed.
( 1 ) IN this writ petition, the petitioners have challenged the decision of the Tender evaluation Committee recommending the acceptance of the tender submitted by the respondents Nos. 6 and 7 (hereinafter referred to as the 'private respondents) in respect of Construction of Belghoria Express Way, Package II. The challenge is mainly on the ground that the tender submitted by the private respondents does not conform to the requirements stipulated in the Instruction to the Bidders (hereinafter to as the said ITB ). It was submitted by the petitioner that the tender of the private respondents should have been rejected as non responsive by the State if the conditions of ITB were adhered to.
( 2 ) THE material facts of the case are as follows : both the petitioners Nos. 1 and 2 are Class I Contractors and empanelled with the Public Works Department and other organizations.
( 3 ) A pre-qualification notice was sent to the petitioners inviting proposals from them for short listing of bidders to work under package Nos. 2 and 3 of the Belghoria Express Way. Pursuant thereto, the petitioners submitted a Pre-qualification application and, thereafter, the petitioners were informed by the respondent No. 4 that the petitioners have qualified for Package No. 2 and they may apply for the purchase of bid documents. After purchasing the said bid documents, the petitioners submitted its tender on 14th September 2000. Along with the said bid, the petitioners also submitted all the required documents. The case of the petitioners is that its tender satisfies all the requirements of the technical bid and the petitioners were intimated of the same and they were further informed that the date of opening of the financial bid was fixed on 5th October 2001.
( 4 ) BY forming a joint venture, the private respondents also submitted a pre-qualification application to the respondent No. 4 and the private respondents were also informed by the respondent No. 4 that they are qualified and may apply for purchase of the bidding documents and pursuant thereto, the private respondents submitted their bids. The technical bid of the private respondents was allegedly found to be in order (this is disputed by the petitioners ). The financial bid was opened thereafter and it was found that the bid of the private respondents was for a sum of Rupees 25,20,45,581/- whereas the bid of the petitioners was for a sum of Rs. 25,64,44,310/ -. As the bid of the private respondents was found to be the lowest, the same was recommended for acceptance by the respondents. This decision, as noted above, has been challenged on several grounds.
( 5 ) NOW coming to the detailed facts of the case, it is clear that in so far as the bid of the petitioner is concerned, the same is proper and valid in terms of ITB. In the instant case, Bank Guarantees are to be submitted by all the intending bidders. In so far as the petitioners are concerned the Bank Guarantees furnished by them were in terms of the ITB. But of the two Bank Guarantees submitted by the private respondents, one was for Rs. 30,37,500/- of the Global Trust Bank and the same was valid up to 31st March 2002. This other Bank Guarantee submitted by the private respondents was for Rs. 10,12,500/- of the United Commercial Bank and the same was valid upto 24th February 2002. The second Bank Guarantee is dated 13th September 2001. It has been specifically made clear that the said Bank Guarantee shall be valid only up to 24th February 2002. Admittedly, the validity of the said Bank Guarantee is less than the required period mentioned in the ITB.
( 6 ) IN this connection, the relevant conditions in ITB may be noticed. Clause 12. 1 of ITB makes it clear that the bid to be submitted shall be in two parts. The first part would be called the technical bid and the second part the financial bid.
( 7 ) PART I of the technical bid comprises various components and of them bid security is important. That is why bid secu
