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2020 Supreme(Gau) 508
GAUHATI HIGH COURT
Achintya Malla Bujor Barua, J.
Ranjit Baruah - Appellant
Versus
State Of Assam - Respondent
Writ Petition (Civil) No. 2846 of 2020
Decided On : 20-07-2020
S. Sarma, Advocate
A tender authority has the jurisdiction to modify the bidding document prior to the last date of submission of bids, in order to allow bidders sufficient time to take into account the modification while submitting their bids.
Headnote:
TENDER - MODIFICATION OF BIDDING DOCUMENT - JURISDICTION OF TENDER AUTHORITY - REASONS FOR MODIFICATION - LEGAL RIGHT OF BIDDER - WRIT OF CERTIORARI - ARBITRARINESS - IRRATIONALITY - PROCEDURAL IMPROPRIETY - LEGAL RIGHT OF BIDDER - STANDING TO CHALLENGE.
Fact of the Case:
Petitioner, an intending bidder, challenged the corrigendum issued by the Principal-cum-Chief Superintendent, Assam Medical College & Hospital, Dibrugarh, modifying the bidding document for outsourcing of dietary service to the inpatient AMCH, Dibrugarh. The petitioner contended that the corrigendum was issued without jurisdiction and violated the provisions of the Assam Public Procurement Act, 2017. The respondents contended that the modification was made to remove ambiguity and inconsistency in the bidding document and that the tender authority had the jurisdiction to modify the bidding document prior to the last date of submission of bids.
Finding of the Court:
1. The tender authority had the jurisdiction to modify the bidding document prior to the last date of submission of bids, as per the provisions of Section 23 of the Assam Public Procurement Act, 2017. 2. The decision of the tender committee to modify Clause 15(d) of the bidding document was not arbitrary, irrational, or procedurally improper. 3. The petitioner did not have a legal right to participate in the tender process where the eligibility would be confined amongst such bidders who had the experience of making the dietary supplies to 500 persons in a hospital/similar health institution alone.
Issues: 1. Whether the tender authority had the jurisdiction to modify the bidding document after the bidding process had started. 2. Whether the decision of the tender committee to modify Clause 15(d) of the bidding document was arbitrary, irrational, or procedurally improper. 3. Whether the petitioner had a legal right to participate in the tender process where the eligibility would be confined amongst such bidders who had the experience of making the dietary supplies to 500 persons in a hospital/similar health institution alone.
Ratio Decidendi: 1. Section 23 of the Assam Public Procurement Act, 2017 empowers the tender authority to modify the bidding document prior to the last date of submission of bids, in order to allow bidders sufficient time to take into account the modification while submitting their bids. 2. The decision of the tender committee to modify Clause 15(d) of the bidding document was not arbitrary, irrational, or procedurally improper, as it was made to remove ambiguity and inconsistency in the bidding document. 3. The petitioner did not have a legal right to participate in the tender process where the eligibility would be confined amongst such bidders who had the experience of making the dietary supplies to 500 persons in a hospital/similar health institution alone, as the tender authority had the discretion to determine the eligibility criteria.
Final Decision: The writ petition was dismissed.
JUDGMENT
Achintya Malla Bujor Barua, J. - Heard Mr. S. Sarma and Mr. A Gautam, learned counsel for the petitioner. Also heard Mr. D. Saikia, learned senior counsel assisted by Mr. B Gogoi, learned counsel for the respondents in the Health Department of the Govt. of Assam.
2. The petitioner who is an intending bidder to the notice inviting tender (E-tender) dated 23.06.2020 of the Principal cum Chief Superintendent, Assam Medical College & Hospital, Dibrugarh (in short AMCH) is aggrieved by a subsequent corrigendum dated 27.06.2020, also issued by the Principal-cum-Chief Superintendent AMCH, by which Point No. 19 of Annexure-1 to the bidding document as well as Clause 15(d) thereof are sought to be modified in the manner provided therein. Further the word ''similar health institute'' appearing in the original bidding document is sought to be modified to be read as ''similar institution''.
3. The relevant extract of Clause 15 of the original bidding document is extracted as below:
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15. Documents Comprising the Bid
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The bids prepared by the bidder shall comprise of (1) Technical Bid and (2) Financial Bid (to be uploaded in the prescribed BOQ)
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Technical Bid: To qualify in the Technical bid the firm should have the minimum eligibility criteria as under and the firm in this regard must submit the following documents in support of their eligibility criteria
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Duly filled format of Technical Bid as Annexure-I
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The bidder shall be a dietary service provider having valid license, Financial status:
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The turnover for providing dietary service in Hospital/Similar Health Institution of the firm should not be less than Rs.3.00 Crore in the last 3 (three) years. Copies of profit & loss account and balance sheets duly authenticated by a Govt. Registered Chartered Accountant for the last three years should be enclosed.
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Experience of similar nature of work of 03 years or more. Similar nature of work means supplying diet services in a hospital/similar health institution on daily basis with a minimum occupancy of 500 persons.
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(j) The bidder must have adequate experience of execution of similar work in Govt. offices/PSUs/Autonomous Bodies and other similar organizations. Necessary supporting documents like work orders, work completion certificate, payment certificate etc for last three years to this effect must be submitted along with the offer.
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The provision of Point No. 19 of Annexure-1 to the original bidding document is extracted as below:
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19. Proof of financial status in form of audited balance sheet for the last three financial years. Average annual turnover must be at least Rs.2.00 crore.
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4. The modification brought in by the corrigendum dated 27.06.2020 is extracted as below:-
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" A per discussions in the meeting held on 25/06/2020 & 27/06/2020, the following corrigendum/addendum have been issued for outsourcing of dietary service to the impatient AMCH, Dibrugarh which was published vide this office e-Tender notice No. MCH/2020/8065 dtd. 22/06/2020 & ID No.2020-HFWD 18029-1
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Corrigendum
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Please read Annexure-I point No.19 as: The turn over for providing dietary service in Hospital/similar Institution of the firm should not be less than 3.00 Crore in the last 3 (three) years instead of average annual turnover must be atleast 2.00 Crore.
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Please read Point No.15(d) as: Experience of similar nature of work of 03 years or more. Similar nature of work means supplying diet services in Govt. hospital/similar institutions/PSU/Autonomous Bodies/Govt. Offices/Similar Organizations on daily bases within a minimum occupancy of 500 persons/ patients and above, but the firm must have a capacity to feed 1500 (fifteen Hundred persons/patients per day throughout the year because the bed capacity of AMCH is 1700 Nos.
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Please read the word similar Health Institution as Similar Institution in the tender document.
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Please ignore page No.31 & 32 which wa
