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2017 Supreme(Gau) 1430
IN THE HIGH COURT OF GAUHATI AT ITANAGAR BENCH
AJIT BORTHAKUR, J.
Tama Fabrication Works – Petitioner
Versus
State of Arunachal Pradesh and Others – Respondents
WP (C) No. 556 (AP) of 2017, IA (WP) No. 124 (AP) of 2017
Decided On : 02-08-2017
Mr. Taba Tagum, Mr. M. Munglang, Ms. Jupi Gab, Mr. L. Tabin, Mr. Ajin Apang, Mr. J. Bagra, Ms. Nani Anju, Mr. O. Mibang, Mr. B. Taka, Mr. K. Riba, Mr. Kardak Ete.
Headnote:
Constitution of India, 1950 - Articles 226 and 14 - Indian Contract Act, 1972 - Sections 2 and 4 - Financial Bidder - Fabrication Works - According to petitioner though Technical bid was opened but neither result of technical bid evaluation nor name of list of bidders if any has been notified in website as on date of filing writ petition which is against principles of e-tendering system - Since financial bid in respect of work in question was not opened upon enquiry petitioner was informed that opening date of financial bid would be notified in website and same would also be intimated to petitioner later on - However as yet no notification has been issued by State respondents for change of opening date of financial bids - Therefore in absence of any such information petitioner has no knowledge about present status of tender process and as on date it is not understood as to how and what manner and by what material facts petitioners bid has been subjected to disqualification - Held, Since price bid of petitioner has not been opened yet and considering fact that work under PMGSY Scheme has remained suspended due to operation of interim order passed by this court hence I do not find any impediment to direct respondents to open price bid of petitioner and thereafter award a fresh Letter of Acceptance in favour of L-1 bidder said recourse in opinion of this court is not only called for in interest of public at large but is also permissible in fact and circumstances of case since other two bidders whose technical bids have been rejected have not approached this court by filing any writ petition - Situated thus authorities concerned are hereby categorically directed to open financial bids of petitioner Fabrication Works A-Sector without any unnecessary delay and authority shall thereafter award Letter of Acceptance in favour of L-1 bidder or other such most suitable responsive bidder as per law - Appeal stands dismissed.
1. Heard Mr. Taba Tagum, learned counsel for the petitioner. Also heard Mr. Kardak Ete, learned Senior Addl. Advocate General, Arunachal Pradesh, assisted by Mr. Duge Sold, learned Addl. Senior Government Advocate, appearing for State respondent Nos. 1, 2, 3 and 5, as well as Mr. Ajin Apang, learned senior counsel, assisted by Ms. Nani Anju, learned counsel, appearing for respondent No. 4.
2. By filing the petition under article 226 of the Constitution of India, the petitioner has prayed for setting aside and quashing of the impugned Notice of rejection dated 23.6.2017 issued by the respondent No. 4, viz., Executive Engineer, Doimukh PWD Division, in respect of his technical bid, followed by impugned communication letter dated 5.7.2017 whereby the petitioner's bids has been illegally and arbitrarily rejected by the Tender Evaluation Committee by citing Clause 4.5.10 of the Standard Bidding Document. The petitioner has further prayed for a direction to the authorities concerned to open the financial bids of the petitioner and recommend the same for participation in the financial bids in respect of the tender work, viz. regarding Construction of Road from Kakoi to Boginadi Road via Kui, Dirgha and Borsutum (from km 0.00 to km 8.00) under Inter-State Connectivity (ISC) in the State of Arunachal Pradesh, at an estimated cost of Rs. 2,031,780 lakhs.
3. The petitioner, herein, is a Class-I Sole Proprietorship Firm duly registered under the State as per the provisions of Arunachal Pradesh Enlistment of Contractor in Works Departments Rules, 2008, vide Registration dated 6.6.2008. The petitioner firm has been revalidated from time-to-time and as such, as per latest revalidation dated 5.8.2016, it has validity till 2019.
4. The facts of the case, in brief, is that in response to ‘e-tender’ for the work, stated above, the petitioner had participated in the tender process by submitting its bids in the website of the department within specified time. According to the petitioner, though the Technical bid was opened on 25.4.2017 but neither the result of technical bid evaluation nor the name of the list of bidders, if any, has been notified in the website as on the date of filing the writ petition, which is against the principles of ‘e’ tendering system. Since the financial bid in respect of the work, in question, was not opened on 9.5.2017, upon enquiry, the petitioner was informed that the opening, date of the financial bid would be notified in the website and the same would also be intimated to the petitioner, later on. However, as yet, no notification has been issued by the State respondents for the change of opening date of the financial bids. When the matter rested, thus, the petitioner, all of a sudden, received the impugned notice of rejection in respect of his technical bid on 27.6.2017, purportedly, issued by respondent No. 4 vide impugned letter dated 23.6.2017 whereby the petitioner's technical bid has been arbitrarily rejected by the Tender Evaluation Committee (‘TEC’) by citing clause 4.5.10 of the Standard Bidding Document (‘SBD’), According to the petitioner, the sole ground cited for declaring the petitioner's firm as technically non-responsive is “false representation” which is not tenable inasmuch as he did not make any false representation or mislead the authority in any manner while submitting his tender documents nor there was any history of abandoning any work awarded to his Firm or poor performance of work or financial failure due to bankruptcy or any history of litigation on account of such poor performance/abandoning of any work awarded to his Firm. Being aggrieved, the petitioner submitted representation dated 27.6.2017 to the respondent-Executive Engineer, Doimukh PWD Division, clarifying the matter that he cannot be disqualified under clause 4.5.10 of the SBD. According to him, the provision of clause 4.5.10 of the SBD can only be made applicable to the Firm/bidder; if such Firm/bidder has either made fal
