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High Court Of Calcutta
Soumitra Pal, J.
NIKHIL CH.DAS - Appellant
Versus
STATE OF WEST BENGAL - Respondent
WP 15319 (W) Of 2006
Decided On : 02/02/2007
TENDER - Conditions - Whether essential or subsidiary - Handwritten bids accepted - Legality - Whether tender committee was justified in accepting handwritten quotations - Whether tender selection committee was competent to alter the terms of the tender - Whether the decision making process and the consequent decision are the subject-matter of challenge.
Fact of the Case:
Petitioners, diet contractors, challenged the decision of the Chief Medical Officer of Health, Murshidabad selecting private respondents to supply cooked dietary meals for the financial year 2006-2007 pursuant to a tender process. The petitioners contended that the tender conditions stipulate that erasures, overwriting and deletions were totally unacceptable, and specific quotations, both in words and figures, should have to be neatly typed in double space, yet the respondents while accepting the tender of the private respondent ignored the guidelines which were essential and, thus at the time of selecting successful tenderers there had been non-compliance of the norms.
Finding of the Court:
1. The tender conditions, as noticed, were essential and compliance of such terms was mandatory. 2. The tender committee headed by the District Magistrate had no authority to alter the terms and ought not to have ignored or should not have given the norms a go-by without issuing a fresh notice or a corrigendum. 3. The decision making process stood vitiated as the norms stipulated acceptance of typewritten bids only. 4. The tender process was conducted in an unfair, arbitrary and illegal manner violating the norms in the tender.
Issues: 1. Whether the tender conditions were essential or subsidiary? 2. Whether the tender committee was justified in accepting handwritten quotations from the private respondents? 3. Whether the tender selection committee was competent to alter the terms of the tender? 4. Whether the decision making process and the consequent decision are the subject-matter of challenge?
Ratio Decidendi: 1. The language "specific quotation both in words and figures shall be neatly typed" sends out the directive in no ambiguous terms that handwritten quotations were not to be accepted. 2. The norms were stringent and essential, the District Magistrate had no authority to alter the terms and ought not to have ignored or should not have given the norms a go-by without issuing a fresh notice or a corrigendum. 3. The tender conditions, the bedrock against manipulation, unfairness and arbitrariness, which by no stretch can be called ancillary or subsidiary, had been given a go-by by the tender selection committee headed by the District Magistrate, Murshidabad. 4. The decision making process stands vitiated on this count too.
Final Decision: Writ petition allowed. Consequently, the award of tenders to the private respondents are set aside and quashed. The tender committee headed by the District Magistrate cum Chairman, District Diet Tender Committee, murshidabad, respondent No. 6 is directed to examine the typewritten bids only and to take a decision in light of the tender notice dated 23rd May, 2006 within a period of five days from the date of production of the certified copy of this order.
( 1 ) IN the writ application the petitioners, stated to be diet contractors, have challenged the decision taken by the Chief Medical officer of Health, Murshidabad selecting the private respondents to supply cooked dietary meals for the financial year 2006-2007 pursuant to a tender process initiated by notice inviting tender dated 23rd of May, 2006.
( 2 ) THE matter was moved on 28th June, 2006 when the learned Advocate appearing on behalf of the State was directed to produce the records. Thereafter, on 30th June, 2006 the matter came up for hearing. Records were produced. Though no interim order was passed, it was recorded that supply, if any, shall be an ad hoc measure and shall be without prejudice to the rights and contentions of the parties. Directions were issued upon the registrar General to keep the records produced by the State in a sealed cover to be produced on the date of hearing.
( 3 ) PURSUANT to directions, affidavits were exchanged. Records were placed and the matter was heard.
( 4 ) THE principal grievance of the petitioner is that though the terms and conditions of the tender stipulate that erasures, overwriting and deletions were totally unacceptable, and specific quotations, both in words and figures, should have to be neatly typed in double space, yet the respondents while accepting the tender of the private respondent ignored the guidelines which were essential and, thus at the time of selecting successful tenderers there had been non-compliance of the norms. Since the terms were incorporated to check malpractice, compliance was mandatory. Moreover, bids in the same tender process relating to some other hospitals in the same district were rejected by the Additional Chief Medical Officer of Health (for short "the ACMOH") as those were found handwritten. Accordingly, there cannot be two sets of norms - one adopted by the Chief Medical Officer of Health and the other by the ACMOH. On the date of opening the tender though they were requested to be present and were present they were unaware of the resolution adopted for accepting handwritten bids since it was not adopted in their presence. Therefore, the submission of the respondents that they were party to the resolution is not tenable. Even assuming they were a party to the resolution, no resolution whatsoever can clarify or alter the terms of the notice inviting tender. Had it been the intention of the authorities to amend the conditions of the tender, corrigendum of fresh notice should have been issued. Since no contract was entered into, clause relating to arbitration is inapplicable. The petition is maintainable as the decision making process and the consequent decision itself are under challenge. Reliance was placed on the judgment of the Supreme Court in Monarch infrastructure (P) Ltd. vs. Commissioner, Ulhasnagar Municipal Corpn. and ors. , reported in 2000 (5) SCC 287, W. B. State Electricity Board vs. Patel engineering Co. Ltd. and Ors. , reported in 2001 (2) SCC 451, Global Energy Ltd. and Ors. vs. Adani Exports Ltd. and Ors. , reported in AIR 2005 SC 2653, Noble resources Ltd. vs. State of Orissa and Ors. , reported in 2007 (1) ICC 313 and an unreported judgment of this Court in matter No. 270 of 1990, Chandu Ghosh and Ors. vs. State of West Bengal and Ors. in support of his submissions.
( 5 ) LEARNED Advocates, appearing on behalf of the State and the private respondents besides reiterating the statements made in their respective affidavits-in-opposition, submitted that the question was whether the particular condition in the tender was essential or not. According to them, it was non-essential amended in public interest as they were expecting competitive offers. Ultimately 25 type written and 27 handwritten bids were accepted by the District Diet Tender Selection Committee which was headed by the District Magistrate of Murshidabad. Further, it was contended as the petitioner had taken part in the tender process and was a pa
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