The decision-making process for awarding a contract by the State should be transparent, fair, and open, and the considerations and procedures mentioned in the tender notice should be followed. The lowest quoted price amongst the qualified tenderers should be considered as the preferred tenderer, subject to meeting the minimum benchmark price fixed by the evaluation committee.

Madan B. Lokur, C.J.

1. The Appellant is aggrieved by an order dated 30th July, 2010 passed by the learned Single Judge in WP (C) No. 3413/2010.

2. The official Respondents had floated a Short Tender Notice on 17th May, 2010. The tender was for construction of a Drain cum Footpath from Ganesh Mandir to Lakhimijan at Hatigaon with culverts/drain for trapping surface water at Kahilipara junction under devolution of fund of 3rd Assam State Finance Commission (Non salary component) for the year 2009-2010.

3. It appears that as many as five bids were received and in so far as the Appellant is concerned, his bid was lowest at Rs. 2,00,49,278.00.

The bid of the private Respondent (Young Construction) was at Rs. 2,22,62,796.00.

Writ Appeal No. 259/2010

4. Notwithstanding the fact that the bid of the Appellant was the lowest, the contract was awarded by the official Respondents to the private Respondent i.e. Young Construction.

5. Feeling aggrieved by this, the Appellant preferred a writ petition which came to be dismissed by the learned Single Judge by the order under appeal. The learned Single Judge noted that the only one reason given by the official Respondents for not accepting the bid of the Appellant was that the Appellant had no experience of working in Guwahati, even though in all other respects, the Appellant fully met the requirements of the tender notice. On the other hand, the only reason why the private Respondent (Young Construction) was given the contract was because its experience of working in Guwahati. No other reason was mentioned.

6. The learned Single Judge took this fact into consideration to come to the conclusion that the experience of Young Construction was good enough reason for the award of the contract and accordingly, the writ petition filed by the Appellant was rejected. Under these circumstances, the Appellant is before us in a writ appeal.

7. The law on the subject is no longer res integra. It has been held by the Supreme Court that the decision making process, while awarding a contract by the State, should be transparent, fair and open. In Dutta Associates Pvt. Ltd v. Indo Merchantiles Pvt. Ltd and Ors. (1997) 1 SCC 53, the Supreme Court reiterated in paragraph 7 of the Report that whatever procedure the Government proposes to follow in accepting a tender must be clearly stated in the tender notice. The considerations of the tenders received and the procedure to be followed in the matter of acceptance of a tender should be transparent, fair and open.

8. From a perusal of the Short Tender Notice, we find that there is absolutely no mention that preference would be given to a bidder who has experience of working in Guwahati. In other words, while awarding the contract to the private Respondent (Young Construction), the official Respondents have taken into consideration a factor which was not mentioned in the Short Tender Notice. The requirement of experience of working in Guwahati should have been disclosed in the Short Tender Notice to make the bidding process transparent, fair and open.

9. On the contrary, the Short Tender Notice mentions in Clause 10 that the lowest quoted price amongst the qualified tenderers shall be considered as the preferred tenderer, subject to the price quoted of the tenderer being nearest to the minimum benchmark price fixed by the evaluation committee formed for evaluating the tenderers. There is no doubt that the bid of the Appellant was the lowest quoted price and that there is no error in the evaluation in so far as the minimum benchmark price is concerned. Consequently, in terms of Clause 10 of the Short Tender Notice, the bid of the Appellant should have been accepted.

10. Learned Counsel for the Respondents submits that Clause 15 of the Short Tender Notice is equally important. This reads as follows :

15. Experience in Similar Nature of Work

The tenderer must submit the details of work complete RELEVANT TO SIMILAR NATURE OF WORK. As per

Form-1 of tender document. As a proof, c