The essential conditions of eligibility and the limited scope of judicial review in award of contracts.

Tapabrata Chakraborty, J.

1. The applications being ASTA 16 of 2017 and CAN 4616 of 2017 have been preferred by one Barjora Alert Co-operative Labour Contract & Construction Society Ltd. and by one Aniul Hoque respectively praying for leave to prefer appeal against the order dated 28th April, 2017 passed by the learned Single Judge in W.P. No12197 (W) of 2017. The State of West Bengal and others have also preferred an appeal challenging the self same order dated 28th April, 2017.

2. Sahakar Global Limited (hereinafter referred to as the said Company) was declared to be a non-eligible tenderer in a tender process initiated on the basis of a notice inviting electronic bids (hereinafter referred to as the said notice) dated 22nd March, 2017 issued by the Superintending Engineer, Public Works Directorate, Western Circle, No.-I. Challenging such decision the said Company and its Chief Tolling Officer preferred the writ petition being W.P. No12197 (W) of 2017. Initially by an order dated 20th April, 2017 the respondents were restrained from opening the financial bid. Thereafter, upon contested hearing, the learned Single Judge arrived at a finding that non-furnishing of the registered power of attorney at the time of submission of the bid is a curable defect and accordingly by the order impugned dated 28th April, 2017 the summary list of technically qualified tenderers was set aside and the authorities issuing the tender were directed to afford an opportunity to the said Company and another non-eligible tenderer to submit the registered power of attorney and the earnest money, which the said authorities had refunded, within a fortnight. The learned Court further directed that in the event the said two criteria are fulfilled by the nonqualified tenderers, the said authorities will consider their tenders, in accordance with law thereafter.

3. Mr. Samrat Sen, learned senior advocate appearing for the State respondents submits that the learned Single Judge erred in law in observing that the non-furnishing of the registered power of attorney at the time of submission of the bid was a curable defect. It would be explicit from Section-A, Clause-3 of the said notice that each contractor participating in the bid was mandatorily required to obtain a Digital Signature Certificate in his own name duly issued to him against the company or the firm of which he happens to be a director or partner and such individual person shall, while uploading any bid for and on behalf of such company or firm invariably upload a copy of the registered power of attorney showing clear authorization in his favour by the respective directors of such company or the partners of such fund. The object and purpose of such requirement was to prevent fraud and to ensure that only persons having appropriate qualification apply.

4. He further contends that the starting date and time and the ending date and time towards submission of bid was scheduled to be 27th March, 2017 at 3:00 p.m. and 14th April, 2017 at 12:00 p.m. respectively. On 14th April, 2017 the person submitting the bid on behalf of the said Company did not have any registered power of attorney and accordingly could not upload the same and as such in the summary list it was indicated that the said Company was a non-eligible tenderer. Though there was no infirmity in such decision, the learned Single Judge erred in law in extending the time as stipulated in the said notice towards submission of the bid which tantamount to grant of leverage to the said Company which could not be availed by the contractors who did not submit their bid for not having a registered power of attorney. In support of such contention reliance has been placed upon the judgments delivered in the case of JSW Infrastructure Limited and Another vs. Kakinada Seaports Limited and Others, reported in (2017) 4 SCC 170 and in the case of Bakshi Security and Personnel Services Private Limited vs. Devkishan Computed Private Limited and Others,