IMPORTANT POINT
Judicial review of tender processes is limited; courts should respect the authority's discretion unless there is clear evidence of arbitrariness or irrationality.

JUDGMENT :

DEBANGSU BASAK, J.

1. Two appeals have been heard analogously as they relate to the same tender bid Electronic Notice Inviting Tender No. 12/2023-2024 dated July 24, 2023 in relation to the work namely, Bolpur-Kankalitala Road from 0.00 Km. to 7.90 Km and Kankalitala-Lavpur road from 0.00 Km to 15.40 Km, widening and strengthening work under Bolpur Highway Division No. II in the district of Birbhum.

2. FMA 140 of 2024 has been filed by the appellant against the judgement and order dated November 20, 2023 passed by the learned Single Judge in WPA No. 23205 of 2023. Appellant has filed MAT 315 of 2024 against the order dated January 10, 2024 passed in WPA No. 26716 of 2023.

3. By the two impugned orders, learned Single Judge has set aside the disqualification of tenderers at the technical bid stage and directed the tender authorities to proceed with the tender by treating the two writ petitioners being S.B. Construction Company and Stone Concern Infrastructure Development Pvt Ltd as technically qualified.

4. Learned Senior Advocate appearing for the appellants has submitted that, the appellants participated in a tender being Electronic Notice Inviting Tender No. 12/2023/2024 dated July 24, 2023 in relation to the work namely, Bolpur-Kankalitala Road from 0.00 Km. to 7.90 Km and Kankalitala-Lavpur from 0.00 Km to 15.40 Km, widening and strengthening work under Bolpur Highway Division No. II in the district of Birbhum.

5. Learned Senior Advocate has drawn the attention of the Court to the scope of the work as well as the Bill of quantity (BOQ) of such tender. In particular he has referred to Item No. 1.22 and 1.23 of the BOQ. According to him, such items comprise major part of the tender. Those two items have been valued at Rs. 7 Crores in aggregate as against the tender value of Rs. 52.18 crores.

6. Learned Senior Advocate appearing for the appellant has contended that, tender was opened on September 15, 2023 when, the eligibility in the technical bill was considered. The authorities did not find the writ petition eligible in the technical bid and as such the tender of the writ petitioner had been rejected on September 15, 2023. Reasons of such rejection have been communicated to the writ petitioner on September 18, 2023. Authorities had opened the financial bid on September 19, 2023 and since the appellant was the lowest, bid of the appellant had been accepted.

7. Learned Senior Advocate appearing for the appellant has drawn the attention of the Court to Clause 3 (i) of the e-tender. He has contended that, the writ petitioner did not have requisite experience in respect of Serial No. 1.22 and 1.23 of the BOQ. In this regard, he has drawn the attention of the Court to the vacating application filed on behalf of the State.

8. Learned Senior Advocate appearing for the appellant has referred to the impugned judgement and order. He has contended that, the learned Single Judge concluded that the writ petitioner fulfilled the 40 per cent of the criterion mentioned in Clause 3(i)(a) of the tender. Learned Single Judge had held that the distinction between ICBP work and bituminous work sought to be introduced subsequently by the State is de hors the e-NIT and, therefore, rejection of Technical Bid of the writ petitioner was bad in law. Learned Single Judge had allowed the writ petitioner with a direction to include the writ petitioner as a technically eligible bidder.

9. Learned Senior Advocate appearing for the appellant has contended that, Clause 3.0 (i)(a) of the e-NIT requires a bidder who has requisite experience of complete work having a magnitude of more than 40 per cent of the contract in the last five years. He has contended that, the work would include all works including Interlocking Concrete Block Pavement (ICBP) work and since ICBP work is a major portion of the tender experience in respect of ICBP work with requisite magnitude of completion of tender with 40 per cent valuation is a mandatory condition.

10. Learned Senior Ad