The main legal point established in the judgment is the requirement for fair consideration and seeking clarifications for perceived deficiencies in the bid evaluation process.

Hrishikesh Roy, J.

1. Heard Mr. P.K. Goswami, learned senior Counsel for the writ petitioner and also Mr. K.N. Choudhury, learned Addl. Advocate General, Assam appearing for respondent Nos. 1, 2 and 3.

2. The present matter pertains to invitation of bids dated 22.12.2006 issued by the Chief Engineer, PWD (Roads) for construction/improvement of Pandit Hemchandra Goswami Path under North-Eastern Council (NEC)'s 10th five year plan programme. The works involved in the tender process have been divided into three separate packages namely J-3, J-4 and J-5.

3. The petitioner No. 1 claiming to be an experienced Company relating to contract works, responded to the invitation for bids by filing their tender documents within the prescribed period. The tender process was a two-bid-system, where the price bids were to be opened and considered only after deciding on the eligibility and responsiveness of the technical bids submitted by different tenderers.

4. The challenge in the instant writ petition is against the decision of the respondents giving a finding that the petitioner Company has failed to meet the eligibility criteria laid down in clause-4 of the ITB.

From the counter affidavit filed on behalf of the respondent Nos. 1, 2 and 3 as well as from the records made available, three grounds have been made the basis for declaring the petitioner's bid to be deficient and non-responsive, for which the petitioner is considered to have failed to meet the eligibility criteria. The three grounds are extracted as below:

(i) The petitioner No. 1 failed to meet the eligibility criteria laid down in Clause 4.2 (f) of the ITB as it submitted audited balance sheets for only two years i.e., 2002 and 2003 instead of 5 years. The balance sheets so submitted for the remaining 3 years i.e., 2004, 2005 and 2006 were not audited.

(ii) The petitioner No. 1 failed to meet the eligibility criteria laid down in Clause 4.5(B)(b) in so far as the bio-data of the key personnel so enclosed with its bid itself shows that tough the Project Manager is a B.E. (Civil), he has experience of only 1(one) year as Project Manager instead of the minimum requirement of 5 to 7 years. The Site Engineer is not a B.E. (Civil) and is in fact a Diploma (Civil).

(iii) The petitioner No. 1 also failed to meet the eligibility criteria laid down in Clause 4.5(B)(c) of the ITB as it submitted a conditional Bank Certificate, which is not in terms of the proper format of the ITB.

5. Amongst the three grounds mentioned above, which weighed with the decision making authority while holding the bid of the petitioner as ineligible, the ground stated in ground No. (i) (non-furnishing of audited balance sheets of the Company for three of the required 5 years) has since been abandoned by the State and the learned Addl. Advocate General, Mr. K.N. Choudhury, in course of the proceedings before this court on 12.4.2007 as well as on 18.5.2007, has categorically submitted that the petitioner Company is not being considered disqualified at this stage, for the reasons reflected in ground No. (i) as stated above.

6. The second ground for which the petitioner's bid has been held to be disqualified pertains to the criteria laid down in Clause 4.5(B)(b)of the ITB.

In Clause 4.5, there are two parts. Part-A specifies the requirement on fulfillment of which, would make a tenderer qualify for contract while Part-B contains the requirement from each bidder to further demonstrate certain additional features with regard to the intending bidder.

7. Under Sub-clause (b) of Clause 4.5(B), an intending bidder is required to demonstrate availability of key personnel for the work in question and the qualification and experience of the personnel are required to be informed as per Annexure-II.

7.1. Annexure-II requires a bidder to provide a list of key personnel to be deployed on contract work. The following qualification and experience requirements are indicated in Annexure-II for different categories of specified key perso