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High Court of Judicature at Calcutta
PRANAB KUMAR CHATTOPADHYAY & SAMAPTI CHATTERJEE, JJ.
Classic Builders & Traders & Another
Versus
State of West Bengal & Others
A.S.T. Nos. 32, 33, 28 & 29 of 2014 & A.S.T.A. Nos. 20 & 17 of 2014 (Appellate Side)
Decided on: 08-04-2014
TENDER - Cancellation - Rejection of bid - Tender Evaluation Committee - Review meeting - Discrepancies in tender documents - Essential and ancillary conditions - Countersignature by Executive Engineer - Technical qualification - Fresh tender - West Bengal Financial Rules, Rule 47(8).
Fact of the Case:
The tender evaluation committee rejected the bid of Classic Builders and Traders on the ground that Forms No. (i) and (iv) did not tally with the work for which the tender was invited. The committee, however, upheld the technical qualification of Neo Built Corporation (NBC). On a representation by NBC alleging irregularities in the bid of Classic, the committee reviewed its decision and rejected the bid of Classic, while upholding the status of NBC. The authorities, however, did not declare NBC as the lowest bidder and instead invited a fresh tender.
Finding of the Court:
1. The requirement of countersignature by the Executive Engineer, Irrigation and Waterways Department, in terms of Clause 7.4.1 (ii) of the tender conditions, cannot be regarded as an essential condition. 2. The tender evaluation committee did not commit any error in not insisting upon strict literal compliance of Clause 7.4.1 (ii) of the tender conditions. 3. The tender submitted by Neo Built Corporation cannot be rejected and the authorities did not take any such decision. 4. The authorities should have invited a fresh tender instead of inviting a second call since only one bidder was found qualified in the technical bid in the first call. 5. The procedure for inviting a second call mentioned in Clause 8.7 of the NITs is violative of Rule 47 (8) and therefore the invitation of a second call by the authorities cannot be held to be valid and legal.
Issues: 1. Whether the requirement of countersignature by the Executive Engineer, Irrigation and Waterways Department, in terms of Clause 7.4.1 (ii) of the tender conditions, is an essential condition? 2. Whether the tender evaluation committee committed any error in not insisting upon strict literal compliance of Clause 7.4.1 (ii) of the tender conditions? 3. Whether the tender submitted by Neo Built Corporation can be rejected? 4. Whether the authorities should have invited a fresh tender instead of inviting a second call? 5. Whether the procedure for inviting a second call mentioned in Clause 8.7 of the NITs is violative of Rule 47 (8)?
Ratio Decidendi: 1. The requirements in a tender process can be classified into two categories - those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. 2. In the first case, the authority issuing the tender may be required to enforce them rigidly. In the other cases, it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases. 3. The West Bengal Financial rules are framed under Article 166 of the Constitution of India and the same cannot be avoided and/or violated by any officer in respect of a particular tender.
Final Decision: The tender process already initiated by the respondent authorities stands cancelled. The respondent authorities are directed to issue a fresh tender notice for the job in question and such tender notice must be published in widely circulated news daily of the State.
Pranab Kumar Chattopadhyay, J.
1. All the appeals arise out of a common judgment and order passed by the learned Single Judge. Therefore, we have heard all the appeals and the connected applications analogously and the same are being disposed of by this common order.
2. From the records, we find that the Superintending Engineer and Member (Execution), North Bengal Flood Control Commission issued a notice inviting tender being No. IW/SE/M(EX)/NBFCC/NIT-1(e)/2013- 2014 (hereinafter referred to as NIT first call) in respect of the work for “extension of segregating embankment of river Teesta and Karala” in the district of Jalpaiguri (Phase-I).
3. It was a two bid system, i.e., technical bid, which should be kept in one sealed cover and the financial bid, which should also be kept in a separate sealed cover. Altogether 8 (eight) tenderers responded to the aforesaid tender notice. Undisputedly, Mackintosh Burn Limited (MBL) was found to be only qualified bidder.
4. Since MBL was found as the only qualified bidder, the respondent authorities decided to proceed for a second call and therefore, issued a fresh notice inviting tender being No. IW/SE/M(EX)/NBFCC/NIT-3(e)/2013-14 (hereinafter referred to as NIT second call). In response to the aforesaid notice inviting tenderer, Neo Built Corporation (hereinafter referred to as NBC), the proprietorship firm of Usha Ranjan Sarkar (hereinafter referred to as Usha) and the Classic Builders & Traders (hereinafter referred to as Classic) along with two others submitted tenders.
5. On examination of the technical bids, Neo Built Corporation of Usha and Classic were found qualified for the purpose of opening the financial bids. The aforesaid decision was uploaded on December 18, 2013. MBL, however, did not respond to the second call since the said MBL was already declared as eligible bidder upon considering the bids submitted by the said MBL in response to the first NIT being No. IW/SE/M(EX)/NBFCC/NIT-1(e)/2013-14.
6. On 24th December, 2013, financial bid of MBL, the eligible bidder in the NIT first call and the financial bids of Neo Built Corporation of Usha and Classic, eligible bidders in the NIT second call, were opened when Classic was found as the lowest bidder namely, L-1 and the Neo Built Corporation emerged as second lowest bidder (L-2) and MBL became 3rd lowest bidder namely, L-3.
7. The position of the respective bidders on the basis of the quoted rates are mentioned hereunder:-
Name of Bidder Quoted Percentage Rank
Classic -19.19% L-1
NBC 18.72% L-2
MBL 15.11% L-3
8. On 27th December, 2013, a representation was submitted to the Superintending Engineer and Member (Execution, North Bengal Flood Control Commission on behalf of the Neo Built Corporation of Usha), wherein the defects, discrepancies and/or irregularities in respect of the bid of Classic were specifically mentioned. In the said representation, learned advocate on behalf of the Neo Built Corporation requested the Superintending Engineer to cancel the bid of Classic and to declare the Neo Built Corporation as the lowest bidder and award the contract.
9. The tender evaluation committee held a review meeting on 31st December, 2013 and on verification of the documents rejected the bid of Classic on the ground that Forms No. (i) and (iv) did not tally with the work for which tender was invited and further recorded that the decision of the tender evaluation committee dated 18th December, 2013 in respect of the Neo Built Corporation of Usha would remain unchanged. The respondent authorities, even after rejecting the bid of Classic did not declare the Neo Built Corporation as the lowest bidder. Therefore, apprehending cancellation of the entire tender process and invitation of a fresh tender in order to enable Classic to rectify the defects, Usha Ranjan Sarkar being the proprietor of Neo Built Corporation filed a writ petition before this court being W.P. No. 752 (W) of 2014 for restraining the respondent authorities from cancell
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