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2018 Supreme(Gau) 1594
IN THE HIGH COURT OF GAUHATI, ITANAGAR BENCH
Ajit Borthakur, J.
Manoj Kumar Harlalka and Ors. – Appellants
Vs.
State of Arunachal Pradesh and Ors. – Respondents
WP (C) No. 414(AP) of 2018, IA (C) 174 (AP) of 2018 and I(C) 166 (AP) of 2018
Decided On : 31-10-2018
For the Appellant :R. Sonar, T. Devi, T. Ruku, G. Jini, L. Tapa and K. Diyum, Advocates
For the Respondent:K. Ete, Sr. Addl. AG, G. Tarak, D. Kamduk, K. Eshi, L. Jillen, K. Jini, T.T. Tara, T. Gadi, D. Loyi, B. Picha, J. Jini, G. Bam and M. Rime, Advocates
Headnote:
Constitution of India, 1950 - Article 226 - Electronic Tendering System - Petitioners grievance is that in response to an e-procurement notice inviting item rate bids in electronic tendering system inter- alia for work Road from package petitioners firm and six other firms participated in electronic tendering process - Technical qualification part of bid was opened by a Technical Evaluation Board headed by respondent No- 4 Superintending Engineer Rural Works Circle West District and vide impugned recommendation letter which was uploaded for public view on e-procurement system on private respondents No - 7 & 8 were made qualified for participating in financial bid which was fixed and all other bidders including petitioner firm were disqualified on grounds that solvency certificate for amount equivalent value of work put to tender submitted by petitioner was wrong as it was not submitted in terms of Appendix to ITB of SBD and that petitioner firm made misleading or false representations in forms statements and affidavit in contravention of SBD – Held, Therefore a court before interfering in tender or contractual matters in exercise of power of judicial review should pose to itself following questions - Whether process adopted or decision made by authority is mala fide or intended to favour someone - Whether process adopted or decision made is so arbitrary and irrational that court cay say decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached - Whether public interest is affected - If answers are in negative there should be no interference Cases involving blacklisting or imposition of penal consequences on a tender/contractor or distribution of State largesse stand on a different footing as they may require a higher degree of fairness in action - Thus it appears that Technical Evaluation Board considered bids of petitioner and respondents No - 6 and 7 fairly and impartially without any element of arbitrariness or mala fide or discrimination and as such requires no interference in decision of Technical Evaluation Board composed of technical experts - Petition stands dismissed.
Ajit Borthakur, J.
1. Heard Mr. Rajesh Sonar, learned counsel appearing on behalf of the petitioners. Also heard Mr. Kardak Ete, learned Senior Addl. Advocate General appearing for the State respondents No. 1 & 2, and Mr. Gimi Tarak, learned Standing counsel for the RWD, Govt. of Arunachal Pradesh, for respondents No. 3, 4, 5 & 6 as well as Mr. T.T. Tara, learned counsel assisted by Mr. G Bam, learned counsel for the private respondents No. 7 & 8.
2. By preferring the instant petition under Article 226 of the Constitution of India, the petitioners have challenged the legality and validity of the impugned recommendations of the Technical Evaluation, dated 20.08.2018, made by the respondent No. 6/the Tender Opening-cum-Evaluation Board in respect of the contract work, viz "C/O Road from Sawa to Venia, (Stage-1), package No. AR/03/03/048" and whereby rejected the technical bid of the petitioner firm allegedly on non-existing grounds.
3. The petitioners' grievance is that in response to an e-procurement notice, dated 13.07.2018 inviting the item rate bids, in electronic tendering system, inter- alia, for work "C/0 Road from Sawato Venia, (Stage-1), package No. AR/03/03/048" under Pradhan Mantri Gram Sadak Yojana (PMGSY), the petitioners' firm and six other firms participated in the electronic tendering process. The technical qualification part of the bid was opened on 07.08.2018, by a Technical Evaluation Board headed by the respondent No. 4/the Superintending Engineer, Rural Works Circle, Rupa, West Kameng District, Arunachal Pradesh and vide the impugned recommendation letter No. RWC/R/PMGSY-XII(I) E-PRO/2018-19, dated 20.08.2018, which was uploaded for public view on e-procurement system on 21.8.2018, the private respondents No. 7 & 8 were made qualified for participating in the financial bid, which was fixed on 27.08.2018 and all other bidders including the petitioner firm were disqualified on the grounds that the solvency certificate for the amount equivalent to 50% of the value of work put to tender submitted by the petitioner was wrong as it was not submitted in terms of clause 4.4 B(a)(iii) of Appendix to ITB of SBD and that the petitioner firm made misleading or false representations in the forms, statements and affidavit in contravention of clause 4.71 of Section 2(ITB) of the SBD. According to the petitioner, the aforesaid grounds were false and non-existing and the respondent No. 7, who was made responsive had glaring defects in the bid documents, such as failure to submit the financial turnover statement duly certified by a Chartered Accountant as required under clause-4.4 A(a) of Section 2(ITB) of the SBD. The financial turnover statement submitted by the said respondent is a self certified statement which should not have been accepted by the Technical Evaluation Board (T.E.B.) as the aforesaid clause provides that to qualify for award of the contract a bidder has to mandatorily submit a statement showing the prescribed minimum financial turnover duly certified by a Chartered Accountant. In this regard, the petitioner firm filed a representation to the respondent No. 3/the Chief Executive Officer and Empowered Officer, Arunachal Rural Roads Development Agency(ARRDA), RWD, Government of Arunachal Pradesh for an immediate redressal of the grievances of the petitioners and with a further prayer for reconsideration of their technical bid as well as for making the private respondent No. 7 disqualified.
4. Mr. R. Sonar, learned counsel appearing on behalf of the petitioners submitted that the solvency certificate was issued by the concerned bank, where the petitioners' firm had no role to play and it is not an essential condition of the bidding document and as such, a curable defect. Mr. Sonar further submitted that there was no material on record to substantiate the finding that the petitioners had made any mi
