IMPORTANT POINT
The court affirmed that adherence to established tendering procedures is crucial, and deviations must be justified; otherwise, the authority's decisions should not be interfered with.

JUDGMENT :

SHAMPA SARKAR, J.

1. The writ petition arises out of award of a contract in favour of the respondent no. 8. The Director, ESI (MB) Scheme, West Bengal floated a notice inviting e-tender from all bona fide, registered, eligible and resourceful agencies for engagement of such agency to provide partial conservancy services at the ESI Hospitals at Belur, Budge Budge, Gourhati and Maniktala.

2. The sum and substance of the allegations made in the writ petition are that the tendering authority did not follow the Memorandum dated June 7, 2022 issued by the Government of West Bengal, Finance Department, Audit Branch, Group – T (hereinafter referred to as the said memo). Situation – III of the said memo provides the steps that are to be taken by the authority in case of a tie amongst the L-1 bidders. The petitioner was the L-1 bidder along with others, including the respondent no. 8. The minimum rate quoted by all L-1 bidders was Rs.300/-. It is alleged that instead of following the procedure laid down in Situation – III (A), the tendering authority decided to evaluate the successful bidders on certain other parameters. The relevant portion of such method is quoted below: -

“TIA has decided as per NIT that if there is a tie among the L-1 bidder in the financial bid, then the bidder with higher credential based on parameters as mentioned below will be selected among L-1 bidders:

(a) Value of single works/service of similar nature completed during last 3 years shall be considered (50% weightage).

(b) Number of personnel supplied in a single contract during last 3 years shall be considered (50% weightage).”

3. Mr. Pal, learned advocate appearing for the petitioner, relies on a Division Bench decision in MAT 1722 of 2022 (Basirhat Food Supply Mohila Co-operative Society Ltd. Vs. The State of West Bengal & ors.), and submits that the Division Bench, in which this court was one of the members, opined that the legality of incorporation of Situation – III in the said memos must be decided in the light of the facts and circumstances pleaded in the writ petition and also in the light of the steps taken by the authorities while invoking Situation – III. In the said case, the L-1 bidders were given another opportunity to offer their bids, after keeping the lowest amount (tie bid) as the base.

4. Mr. Pal submits that when the Finance Department, Audit Branch had issued a memorandum, it was incumbent upon the tendering authority to follow the same. Changing the rules of the game after the game had started, by employing a different mechanism to select the L-1 bidder in case of a tie, vitiated the entire process.

5. Mr. Sen, learned AAAG, submits that neither did the authority change the rules of participation nor the method of evaluation of the L-1 bidder. Reliance has been placed on Clause 10(xvi). The said clause provides that credential certificates should be submitted by the bidders along the bid documents. The credential certificates must include the following information: -

“(a) The highest value of single work/service of similar nature completed during last three years (50% weightage).

(b) The highest number of personnel supplied in a single contract during the last 3 years(50% weightage).”

6. According to learned Senior Advocate, all the bidders were required to submit the documents in compliance with the above. Next, Mr. Sen points to Clause 12, which deals with the financial proposal. Clause 12(iv) provides that the rate quoted should not be below Rs.300/-. Clause 17 has been relied upon to indicate the method of evaluation of the financial bid and the award of the contract. Clause 17(iii) deals with the situation which has given rise to the present litigation.

7. It is urged by Mr. Sen, in justification of the evaluation of the financial bid and selection of the respondent no. 8 as the successful bidder, that the said memo would not be applicable in this case. As per the said memo, the authority was required to invite further sealed bids f