IMPORTANT POINT
The court affirmed that the interpretation of tender conditions by the authority is paramount, and minor technical deficiencies do not justify judicial intervention.

JUDGMENT :

SHAMPA SARKAR, J.

1. Supplementary affidavit filed by the petitioner is kept on record.

2. The petitioner participated in a tender floated by the South Eastern Railway. The Chief Engineer/Con/II/GRC, South Eastern Railway, Garden Reach, Kolkata, intimated the petitioner that the techno commercial bid of the petitioner was found unsuitable. The petitioner’s bid had failed, as the bid capacity was not certified by the Chartered Accountant.

3. Mr. Kundu, learned Senior Advocate appearing for the petitioner has assailed the cancellation of the bid on the following grounds:

(a) The documents as specified in clause 12.25 of the tender conditions had been certified by the Chartered Accountant. According to Mr. Kundu, the format at page 78 of the writ petition was the profoma in which the information was to be given and the said proforma was duly filled in, with the signature and certification of Chartered Accountant.

(b) The authority failed to consider the documents deposited by the bidder in support of his credentials (bid capacity). The information document as per Note-(a)(i) and (ii) were duly certified by the Chartered Accountant and those documents have been produced before this Court by way of a supplementary affidavit.

(c) The authority could not have created an additional clause thereby cancelling the bid when the exact format had been annexed to the bid documents which is at page 78 of the writ petition. The authority had used a hyper-technical reason to cancel the bid of the petitioner and favour some other persons. Such arbitrary cancellation of the bid should be struck down by a writ court. The authority intentionally mis-interpreted their clause just to oust the petitioner from free and fair competition.

(d) According to Mr. Kundu, no other defect or deficiency in the bid capacity could be pointed out, save and except the absence of the Chartered Accountant’s signature and the certification was not in the manner the tendering authority had wanted the same to be. Such expectation of the railways had not been clearly stated in the bid documents. All that the tenderers was required to file was valuation of the work done in the past three years, the money received and the average annual contractual turnover for the past three years. Such information had been provided. Hence, the writ petition should be allowed by quashing the decision of the tendering authority as communicated to the petitioner on June 25, 2024 with a further direction upon the authority to open the petitioner’s financial bid.

4. The learned Advocate for the tending authority submits that clause 2.2 (c) (3) of the Notice Inviting Tender (NIT) specified that scanned copies and the copies in the PDF of the documents for evaluating the bid capacity must be produced and the bid capacity should be as per clause 12.25. The provision was made applicable in respect of all works contract having tender value of Rs.20 crores and above. As the tender value in this NIT was around Rs.43 crores, the said clause and clause 12.25 were applicable.

5. Referring to clause 12.25, it is submitted that the said clause provides the method by which the bid capacity should be calculated. Available Bid Capacity = [A x N x 2] - 0.33 x N x B.

6. Referring to the Note appended the said clause, it is submitted that the tenderers were required to submit two things; (i) maximum value of construction works executed and payment received in any one of the previous three financial years or the current financial year up to the date of inviting tender for calculating component A and (ii) existing commitments and balance amount of ongoing works with tenderer as per the prescribed proforma. It is submitted that both these calculations were required to be duly verified by a Chartered Account.

7. According to the Ms. Banerjee, Page 119 of the writ petition will indicate that the petitioner had only provided the average contractual turnover, i.e. the income received, whereas, the conditions required t