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GAUHATI HIGH COURT
R.K.Manisana Singh, S.N.Phukan, JJ.
Dilip Kumar Dutta -Appellant
Versus
State of Tripura -Respondent
Civil Rule No. 4 of 1984
Decided On : 11-03-1986
TENDER - Norms and procedure - Departure from - Legality - 'Turnkey' project - Tenderer's right to have tender considered on merit - Estoppel - Applicability - Public interest.
Fact of the Case:
The petitioner, a tenderer for a 'turnkey' project for the expansion of a water treatment plant, challenged the actions of the respondents, who were public officers, in not awarding the contract to him. The petitioner alleged that the respondents had departed from the norms and procedures notified in the tender notice, that they had acted in a high-handed, arbitrary, and malafide manner, and that they had used his techno-commercial offer, designs, and drawings without his permission.
Finding of the Court:
The court held that the respondents had indeed departed from the norms and procedures notified in the tender notice, that their actions were arbitrary and unreasonable, and that they had violated the fundamental principle of fair play. The court also held that the petitioner had a right to have his tender considered on merit by the Works Advisory Board and that the respondents were estopped from denying him this right.
Issues: 1. Whether the respondents had departed from the norms and procedures notified in the tender notice? 2. Whether the respondents' actions were arbitrary and unreasonable? 3. Whether the respondents had violated the fundamental principle of fair play? 4. Whether the petitioner had a right to have his tender considered on merit by the Works Advisory Board? 5. Whether the respondents were estopped from denying the petitioner his right to have his tender considered on merit?
Ratio Decidendi: 1. The court held that the respondents had departed from the norms and procedures notified in the tender notice because they had introduced a new requirement, namely, envelope 'D', which was not mentioned in the original notice. The court also held that the respondents had violated the fundamental principle of fair play by preparing their own drawing and design on the basis of drawings and designs submitted by the tenderers in envelope marked 'B'. 2. The court held that the respondents' actions were arbitrary and unreasonable because they had failed to follow the norms and procedures laid down in the tender notice and because they had not given any valid reason for departing from these norms and procedures. 3. The court held that the petitioner had a right to have his tender considered on merit by the Works Advisory Board because the respondents had promised in the tender notice to consider all tenders on merit. The court also held that the respondents were estopped from denying the petitioner his right to have his tender considered on merit because they had accepted his envelope-D under protest.
Final Decision: The court allowed the petition to the extent that it directed the respondents to place the petitioner's tender before the Works Advisory Board for consideration. The court also gave the Board liberty to decide the future course of action in relation to the last notice inviting tender dated 3rd October, 1983.
It was decided to expand the existing 1.5 million gallon discharge capacity water Treatment Plant at Agartala, the capital of Tripura by constructing another 2 million gallon discharge capacity Water Treatment Plant at Badarghat, Agartala. As the Municipal authority did not have requisite technical personnel the work was entrusted to the Public Health Engineering Department, Government of Tripura. The Executive Engineer of the Public Heath Engineering, respondent No. 2 issued abridged tender notices on turn key basis at an estimated cost of Rs. 20 lakhs twice i.e. on 20.10.81 and 27.3.82. On both the occasions the tenders received were not accepted. Finally on 20.11.82 third call abridged tender notice on the same terms and condition was issued. The petitioner along with six other persons submitted their tenders. The present petition arises out of this third call tender notice.
2. The petitioner contacted M/s. Project Services and Systems Consultant, Calcutta and M/s Geo Millor & Co (P) Limited Calcutta; two of the most reputed engineering firms in this field for collaboration and both the firms agreed to do so. The existing 1.5 million gallon discharge capacity Water Treatment Plant at Agartala was constructed by M/S Geo Miller & Co. (P) Lmited, Calcutta and the petitioner states that the present plant is working to the entire satisfaction of the authorities.
3. According to the tender form the tender was to be submitted in three separate envelopes being envelope 'A', 'B' and 'C'. Envelope 'A' should contain deposit receipt of earnest money, envelope 'B' -techno-commercial offer and envelope 'C' -price offer. The envelope 'A' was to be first opened and if it was found that tenderers have deposited the requisite earnest money their envelopes marked 'B' would be opened on that date and the envelope marked 'C' would be opened on latter date to be notified. Accordingly envelopes 'A' and 'B' were opened on 12th January, 1983. Since it was a turn key project the petitioner after investing considerable money, devised and designed the said plant in consultation with his collaborators and submitted lay-outs, designs, specifications and drawings of the project to respondent No. 3 in envelope 'B'. The petitioner came to know that after evaluating the documents including the techno-commercial offer, the tender of the petitioner more particularly the techno-commercial offer, drawings, designs etc. was found to be the best and in good shape whereas the tenders of the other six persons were found defective. On 25th January, 1983 the petitioner forwarded another drawing to respondent No. 5 with a copy to Superintendent Engineer, respondent No. 4 providing for future expansion of the project. The petitioner has also alleged that even the team of experts from Calcutta Metropolitan Development Authority was of the unanimous opinion that drawings, designs etc. submitted by the petitioner were best in every respect.
4. Thereafter on 10th March, 1983 the Superintendent Engineer, respondent No. 4 demanded a declaration that in the event of failure of their collaborators joining with them the tenderers would be liable to pay a sum of Rs. 1 lakh which was duly furnished by the petitioner.
5. On 21st March, 1983 the Superintendent Engineer, respondent No. 4 forwarded to the tenderers lay-outs, designs etc. requesting them to sign these documents as a token of acceptance and to intimate the extra amount, if any, in respect of tender price which will be added or deducted from the lump sum price quotes in envelope 'C'. According to the said direction of respondent No. 4 the said drawings, designs etc. along with price variation, if any, should be submitted in a separate envelope marked 'D'. The petitioner has alleged that the above lay-outs, designs, drawings, maps etc. circulated by the respondent No. 4 were lay-outs, designs etc., with minor variation submitted by him in envelope marked 'B' and accordingly he lodged a protest on 7.4.8
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