IMPORTANT POINT
The court affirmed that tender documents must be signed as per mandatory requirements, interpreting 'may' as 'shall', thus validating the rejection of non-compliant bids.

JUDGMENT :

T.S. Sivagnanam, C.J.

1. This intra court appeal by the unsuccessful writ petitioner is directed against the order dated 22.11.2023 in WPA No. 26163 of 2023. The said writ petition was filed by the appellant to direct the official respondents particularly respondent No. 3 to cancel the technical evaluation and evaluate the technical bid submitted by the appellant afresh by following the order passed in WPA No. 19281 of 2023 dated 19.10.2023.

2. The said writ petition was filed by the appellant for a direction upon the official respondents to consider his complaint dated 28.06.2023 against those bidders who have submitted insufficient documents in the tender invited by the respondent for supply of cooked diet for the indoor patients of the ESI Hospital, Manicktala and to cancel their bids during the technical evaluation prior to opening of the financial bid. The said writ petition was disposed of by directing the respondent authorities to consider the representation within a time frame by giving an opportunity of representation/hearing to the appellant as well as all the entities against whom allegations have been made in the representation. There was also a direction upon the respondent authorities to ensure that the tender process shall be finalised as expeditiously as possible, positively by 17.11.2023. It is not in dispute that the appellant and the other bidders were given up opportunity of hearing and the respondent authority uploaded its decision on 11.11.2023 in respect of 23 bidders and the bid submitted by the appellant was technically rejected on the ground that the terms and conditions are not signed and sealed as per tender clause in Memo dated 11.05.2023. In the present writ petition, the appellant sought for setting aside the order of rejection of the appellant’s bid on a technical ground and to cause fresh evaluation of the bid so that the financial bid of the appellant can be opened.

3. Before the learned Single Bench, it was argued on behalf of the appellant that the technical bid has been rejected on a frivolous ground namely that the tender document was not signed and sealed. It was submitted that the tender documents which are downloaded from the website of the West Bengal Government E-Procurement System “may” be signed and submitted as per e-tender procedure mentioned therein. The expression “may” lends a discretionary colour to the said requirement and therefore the bid submitted by the appellant could not have been rejected altogether as the appellant did not sign the downloaded documents. It was argued that the respondent authorities failed to intimate individually the outcome of the consideration to each of the participants which would amount to violation of the direction issued by the learned Single Bench in the earlier writ petition.

4. Further it was submitted that all the documents have been signed and sealed and so far as the tender documents which was downloaded was digitally signed by the appellant. Therefore, the bid document submitted by the appellant could not have been rejected. The rejection was uploaded on 11.11.2023 and on the same date a representation was given to the respondent authority alleging non-compliance of the order passed in the earlier writ petition dated 10.10.2023 and that the rejection of the technical bid of the appellant was unlawful. The learned Single Bench opined that the direction issued in the earlier writ petition has been complied with in as much as the appellant and other bidders were given an opportunity of hearing and thereafter the bids were evaluated and reasons have been assigned as to why a bid document was found to be technically qualified or technically unqualified. Further the learned Single Bench observed that it is not possible to physically communicate the outcome of the consideration to each of the participants and since the outcome of the technical evaluation was uploaded on the official website, containing the reasons of rejection and accepta