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2017 Supreme(Gau) 77
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH
A.K.GOSWAMI, J.
M/s Olympia Seating Private Limited - Petitioner
Versus
The State of Assam, represented by the Commissioner & Special Secretary & Ors. - Respondents
Writ Petition (C) No. 7907 of 2016
Decided On : 27-01-2017
For the Petitioner: Mr. R. Dubey
For the Respondents: Mr. I. Choudhury
The tender process must be fair, transparent, and non-arbitrary, and the lowest tenderer does not have an automatic right to be awarded the contract.
Headnote:
FIFA World Cup - Venue Improvement - Press Notice dated 08.09.2016, Press Notice dated 18.12.2016 - Summary of Acts and Sections: Article 14 of the Constitution of India, Tender process, Judicial review, Fairness, Non-arbitrariness, Public interest
Fact of the Case:
The petitioner participated in a tender process for supplying spectator bucket chairs for the FIFA World Cup event. After being short-listed and emerging as the lowest tenderer, the petitioner's chair was rejected, and a subsequent tender notice was issued, leading to the petitioner's challenge in court.
Finding of the Court:
The court found that the rejection of the petitioner's chair and the subsequent issuance of a fresh tender notice were justified, as the quality of the chairs was crucial to meet FIFA standards and uphold the prestige of the event. The court dismissed the writ petition, emphasizing the importance of fair, transparent, and non-arbitrary tender processes.
Issues: Quality of chairs, Validity of subsequent tender notice, Judicial review of tender process
Ratio Decidendi: The State's power in allotting contracts is subject to judicial review, and the tender process must be open, fair, and transparent. The lowest tenderer does not have an indefeasible right to be awarded the contract, and public interest should guide the court's decision.
Final Decision: The writ petition was dismissed, and the court emphasized the importance of fair and non-arbitrary tender processes.
Heard Mr. R. Dubey, learned counsel for the petitioner. Also heard Mr. I. Choudhury, learned standing counsel, PWD, appearing for all the respondents.
2. Guwahati is selected as one of the venues for hosting Under-17 FIFA World Cup - 2017. The football matches are to be played at Indira Gandhi Athletic Stadium (IGAS), Sarusajai Sports Complex (SSC), Sarusajai. The event will take place in the month of October, 2017. This international event requires facilities to be provided to the teams as well as spectators by way of a particular standard, set by FIFA.
3. To improve the venue to FIFA standard, in continuation of an earlier Press Notice dated 24.08.2016, another Press Notice was issued on 08.09.2016 inviting tenders encompassing different aspects. The present writ petition is filed in connection with an item called ‘Spectators Bucket Chair at Gallery’, which is listed at Group-D of the Press Notice.
4. The case projected by the writ petitioner is that the petitioner participated in the aforesaid tender process along with others. After opening of technical bids, 3(three) tenderers including the petitioner were short-listed for opening of financial bids. Though not required under the Bidding Document, such short-listed tenderers were asked to produce one sample bucket chair before opening the financial bids. The respondents rejected two out of three sample bucket chairs including the chair produced by the petitioner and approved a particular type of chair of ‘Swagat’ brand. On 06.12.2016, the respondents opened the financial bids of the short-listed tenderers and the petitioner emerged as the lowest tenderer. By a letter dated 12.12.2016, the petitioner committed to supply chair of ‘Swagat’ brand at the rate quoted by him. While the petitioner was expecting award of supply order in his favour, a Press Notice dated 18.12.2016 was issued inviting fresh tenders for the Group-D work.
5. Challenging the said Press Notice dated 18.12.2016, approach is made by the petitioner to this Court contending that the respondent authorities had, on irrelevant and extraneous consideration, and without any justification, aborted the earlier tender process and, therefore, the respondents be directed to award the contract on the basis of the Press Notice dated 08.09.2016.
6. An affidavit was filed by the respondent No.2, in which it is averred that a Committee was constituted with (i) The Director, Sports Authority of India, Dr. Subhash Basumatary, (ii) The Director of Sports & Youth Welfare, (iii) The Chief Engineer, PWD (Building), (iv) The Secretary (Sports), Sports Authority of Assam cum Nodal Officer, FIFA World Cup U 17-2017, (v) The Additional Chief Engineer, PWD (Building) (vi) The Superintending Engineer, PWD (Building) for evaluation of technical demonstration of samples of the 3(three) technically qualified bidders and they were directed to produce their respective samples before the Committee on 28.11.2016. It is pleaded that cancellation of Press Notice dated 08.09.2016 and subsequent Press Notice dated 18.12.2016 was uploaded in the official website one after the other.
7. In Paragraph 3(D), (E) and (F) of the said affidavit filed on 10.01.2017, it is averred as follows:-
“D. That on 28.11.2016, the three technically qualified bidders including the petitioner herein produced their respective samples before the said committee. The sample produced by the petitioner was found to be extremely brittle and upon application of little amount of pressure, the chair broke into two pieces. As such, the said sample was out rightly rejected. The sample produced by Shri Surajit Baruah was of one ‘Supreme’ brand which was found to be very light in weight and the same has not been fixed anywhere so far and consequently the same was found to be untested. The sample produced by the third technically qualified bidder, i.e. M/s U.D. Scientific was of ‘Swagat’ which was found to be of heavier and tougher material having the required strength an
