The discretion of the tender issuing authority in accepting bids and the requirement for 'material deviations' from critical provisions under NIT clauses.

JUDGMENT

Sabyasachi Bhattacharyya, J. - The petitioner participated in a tender dated September 6, 2019 floated by the respondent authorities for cleaning and housekeeping services in respect of two hospitals at Kalna and Katwa and succeeded, along with respondent nos. 9 and 10, in the technical stage. Thereafter there was a tie between the petitioner, respondent nos. 9 and 10 and others at the financial bid stage, for which the fate of the bidders was decided by lots. The petitioner participated and lost in respect of both the hospitals and three others, including respondent nos. 9 and 10, were chosen as successful bidders for each hospital and work orders issued to them. On October 25, 2019, the petitioner gave a representation to the tender issuing authorities indicating his grievances at the selection of respondent nos. 9 and 10 even at the technical stage. The present writ petition has been filed challenging the tender process and consequential work orders and for a direction on the respondent authorities to consider the petitioner's aforementioned representation.

2. The petitioner assails the selection of respondent no. 9 on two grounds.

3. First, that the petitioner had submitted the PAN Card of Jayanti Saha while all other documents were in the name of M/s Command Security Services, which is respondent no. 9. Secondly, scanned copies of documents, which were required by Clause 10.5.2 of Section VI of the Notice Inviting Tender (NIT) to be uploaded in black and white, were submitted in colour.

4. The selection of respondent no. 10, namely M/s Noble Security Services, is challenged on several grounds.

5. First, no GST Certificate, but only a provisional certificate was submitted by the said respondent.

6. Secondly, the Professional Tax Enrolment of respondent no. 10 had expired on July 31, 2018, that is, before the tender.

7. Thirdly, instead of submitting a Performance Statement as required under Section IX of the NIT, the said respondent had submitted only an affidavit declaring that performance statement has been submitted. Such affidavit was notarized on April 19, 2018 while the tender was invited on September 6, 2019.

8. The fourth objection, common with respondent no. 9, was that colour scan of documents were uploaded, contrary to the black and white required under Clause 10.5.2.

9. Learned senior counsel appearing for the petitioner relied on Clause 10.5.2 of the NIT, one of the requirements stipulated wherein is that scans of the technical documents had to be uploaded in black and white.

10. Clause 10.5.3 enumerates the documents to be contained in the non statutory cover, which included Certificates pertaining to Income Tax PAN, Professional Tax Registration and GST Registration.

11. Clause 18.6, it is contended, specifies that if any document required to be submitted for 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.

12. Apart from the grounds pleaded in the writ petition, learned senior counsel for the petitioner contends that the time-limit stipulated for furnishing performance security was relaxed in the case of respondent no. 10 after it became successful in the tender.

13. Section IX of the NIT provides a proforma performance statement, credentials of which are also one of the requirements, along with documentary evidence, as per Clause 10.5.3 of the NIT.

14. Learned senior counsel argues that respondent nos. 7 and 8, who were responsible for conducting the present impugned tender, were also instrumental in floating a previous tender, where the petitioner, on his bid being rejected, submitted a representation on October 10, 2017. A co-ordinate Bench, by an order dated November 3, 2017, the tender issuing authority to dispose of such representation in accordance with law. The present respondent no. 7 himself had communicated such order dated November 14, 2017, issued by the Direct