Tendering authorities have discretion to reject bids for non-compliance with NIT clauses, and timely legal action is crucial.

JUDGMENT

Sabyasachi Bhattacharyya, J. - The petitioner challenges the rejection of his bid and the acceptance of respondent no.10 as the successful bidder in a tender floated by the respondent-authorities on May 27, 2019 for supply of cooked diet for indoor patients admitted to health facilities. The Revised Bid Summary Report (Annexure P-1 at page 81 of the writ petition) indicates that the petitioner's bid was rejected for non-submission of Performance Certificate in prescribed format as per Clause 3 of the Notice Inviting Tender (NIT). Learned counsel for the petitioner submits that the petitioner duly submitted Performance Statement in terms of the proforma given in Clause 3 of the NIT. By placing such Performance Statement dated June 7, 2019 (annexed at page 86 of the writ petition), learned counsel contends that all particulars, as required by the NIT, were furnished by the petitioner. Despite having done so, the tendering authorities rejected the petitioner's bid for nonsubmission of Performance Statement in prescribed format.

2. Learned counsel for the petitioner further submits that the bid of the private respondent was accepted unlawfully, although the same was in contravention of the conditions stipulated in the NIT.

3. Clause 18.3 of the NIT provides that if any document required to be submitted for e-tender by the bidder in his technical proposal is not submitted or is found to be deficient in any manner at any stage after opening of bid, the bid may be summarily rejected.

4. Clause 13.1 of the NIT provides that the bidder shall provide an undertaking that the proprietor/promoter/director of the firm, its employee, partner or representative are not convicted by a court of law for offence involving moral turpitude in relation to business dealings such as bribery, corruption, fraud, etc. The undertaking should also contain the averment that the firm does not employ a government servant, who has been dismissed or removed on account of corruption and that the firm has not been debarred or blacklisted by any Government Ministry/Department/Local Government/PSU, etc., in the last 2 years from scheduled date of opening of the e-tender.

5. The undertaking submitted by the private respondent, annexed at page 93 of the writ petition (Annexure P-4), was undated and, as such, did not qualify for being considered within the contemplation of Clause 13.1, it is submitted.

6. That apart, learned counsel for the petitioner argues, the Performance Statement of the private respondent was not accompanied by a notarised certification authenticating the correctness of the information furnished. Such requirement appears at the end of Clause 3.1 of the NIT. Comparing the mere notarial stamp and seal appearing on the Performance Statement of the private respondent (at page 92 of the writ petition) with the full-fledged notarial certificate furnished by the petitioner (annexed at page 85 of the writ petition), learned counsel argues that the documents of the private respondent were deficient on such score as well, thus disqualifying the bid of the private respondent.

7. Learned counsel appearing for the respondent-authorities submits that the undertaking furnished by the private respondent sufficiently complied with the provisions of the NIT, since the last sentence of such undertaking (although undated) mentioned that the firm had not been debarred or blacklisted by any Government Ministry/Department/Local Government/PSU, etc., in the last two years from scheduled date of opening of the tender.

8. Learned counsel submits that the notarial stamp affixed to the Performance Statement of the private respondent, although not a 'notarial certificate' in the strictest sense, fulfilled the criterion stipulated in the NIT in that regard.

9. Learned counsel for the tendering authorities further contends that the Performance Statement of the petitioner was insufficient. Pointing out in particular to the details furnished under the first and third colu