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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
MANISH CHOUDHURY, J.
M/s Yashnand Engineers and Contractors Pvt. Ltd. – Petitioner
Versus
The State of Assam – Respondent
W.P. (C) No. 1242 of 2021
Decided On : 23-09-2021
Constitution of India,1950 - Articles 226, 12 and 14 - Companies Act, 2013 - Contract work executed - Company registered - Press Notice - Alleged delay in executing contract works, as contended on behalf of State respondents, is not a ground taken earlier. By referring to the documents annexed to the writ petition to which learned Advocate General - Press Notice bearing was published by Chief Engineer, Public Works Department places for convenience - inviting bids from eligible registered contractors/firms/private limited company having experience of similar nature of work for Contract Work - In continuation of Press Notice - inviting bids for the Contract Work from contractors having eligibility criteria as laid down in Standard Bidding Document approx - Value of work has been mentioned and the time of completion as 36 months - Downloading of bidding document was open last date of submission of bid was mentioned Online submissions of technical bid and financial bid were made mandatory - pre-bid meeting was scheduled at the office of the Chief Engineer pre-bid meeting, held Corrigendum – Held, Competitive bidding process had begun in the case in hand with the submission of the bids by the three participating bidders with two barriers - Technical bid evaluation stage and financial bid evaluation stage cross for them to emerge as the successful bidder by one of them - Petitioner was stopped by the tendering authority at first barrier, that is, at technical bid evaluation stage and the other two participants were allowed to remain in race who eventually also crossed next barrier, that is, the financial bid evaluation stage - After stage of financial bid evaluation was over - bidder who had emerged as the successful bidder - Petitioner also had knowledge who had reached last stage in the bidding process. After emergence of the successful bidder only thing left to be completed by tendering authority is the award of the Contract Work as per terms of bidding document - High Court when its bid was disqualified at the technical bid opening stage. writ petition was allowed and High Court had the opinion that the eligible bidders were not entitled to be either impleaded by ineligible bidder or were not entitled to be heard - Hon’ble Supreme Court has observed that view of High Court was not appropriate view to take in matters like that - One of reasons is that there could be occasions where an eligible bidder would bring to notice of owner or employer of the project that ineligible bidder was ineligible for additional reasons or reasons that were not within contemplation of owner or employer of the project - Case in hand where there has been identification of the successful bidder when the writ petition was filed, I find force in submission made on behalf of the State respondents that petitioner ought to have made successful bidder a party-respondent in the writ petition - Court has found no reason to interfere with the decision taken by Technical Bid Evaluation Committee with regard to disqualification of the technical bid of the petitioner - writ petition stands dismissed
JUDGMENT :
MANISH CHOUDHURY, J.
1. The writ petition under Article 226 of the Constitution of India has been preferred by the petitioner, a company registered under the provisions of the Companies Act, 2013, assailing the decision of the Technical Bid Evaluation Committee taken in a meeting held on 16.02.2021 wherein the technical bid submitted by the petitioner in response to a Press Notice bearing no. GMC-81/2020/5 dated 02.01.2021 had been declared to be non-responsive. A further direction to the State respondent authorities is sought for to consider the technical bid submitted by the petitioner and to open its financial bid.
2. The impugned decision of the Technical Bid Evaluation Committee dated 16.02.2021 is relatable to a competitive bidding process initiated for the contract work “Construction of New Medical College centering MMCH and Kalapahar campus along with 800 Bedded General Hospital at MMCH Campus in Guwahati” [hereinafter referred to as ‘the Contract Work’ for easy reference].
3. A Press Notice bearing no. GMC-81/2020/5 was published by the Chief Engineer, Public Works Department [P.W.D.] [Building], Assam [hereinafter also referred to as ‘the tendering authority’ at places for convenience] on 02.01.2021 inviting bids from eligible registered contractors/firms/private limited company having experience of similar nature of work for the Contract Work. In continuation of the Press Notice dated 02.01.2021, a Detail Notice Inviting Bid [‘the NIT’ for short] was published on 18.01.2021 inviting bids for the Contract Work from contractors having eligibility criteria as laid down in the Standard Bidding Document [the SBD/the bidding document, for short]. In the NIT, the approx. value of the work has been mentioned as Rs. 666.1351 crores and the time of completion as 36 months. The details of the bid was made available at the e-procurement portal website, www.assamtenders.gov.in and it was made mandatory for the participating bidders to enroll therein.
4. As per the original NIT, downloading of bidding document was open from 18.01.2021 to 08.02.2021. The last date of submission of bid was mentioned as upto 12-30 p.m. 08.02.2021. Online submissions of technical bid and financial bid were made mandatory. A pre-bid meeting was scheduled at 11-00 a.m. on 21.01.2021 at the office of the Chief Engineer, P.W.D. [Building], Assam. After the pre-bid meeting, held on 21.01.2021, a Corrigendum dated 06.02.2021 with a revised activity schedule, came to be published. By the revised activity schedule, the last date of submission of bid was extended upto 12-30 p.m. on 10.02.2021. The time and date of technical bid opening were mentioned as 04-30 p.m. and 10.02.2021 respectively.
5. In response to the NIT dated 18.01.2021, the petitioner participated in the said competitive bidding process considering itself to be eligible, experienced and qualified in terms of the NIT dated 18.01.2021 by submitting its bid along with all the documents asked for, within the notified time.
6. As per the activity schedule, the technical bids of the participating bidders were opened on 10.02.2021 and it was found that three nos. of bids including that of the petitioner, were received by the tendering authority for the Contract Work. The technical bids of all the three bidders were thereafter, evaluated and an evaluation report was presented before a Technical Bid Evaluation Committee headed by the Chief Engineer, P.W.D. [Building] Assam constituted for the purpose of considering the bids on merit.
7. It is the case of the petitioner that when the petitioner was waiting and expecting for a positive outcome of its technical bid, it came to learn from the official website of the respondent authorities that its technical bid had been found non-responsive. The reasons assigned for such non-responsiveness are, firstly, non-receipt of confirmation from the concerned
The decision of the employer in interpreting the conditions of eligibility in a tender document must be respected unless it is shown to be arbitrary, outrageous, and highly unreasonable.
Judicial review in tender matters is limited to assessing procedural fairness, not the merits of the tender conditions, which are determined by the tendering authority.
The court upheld the tendering authority's discretion in setting eligibility criteria, emphasizing limited judicial review focused on procedural fairness rather than the merits of the decision.
Tender bid qualifications must adhere strictly to stated requirements; courts generally defer to the owner's interpretation unless found arbitrary.
The court emphasized the importance of fair and transparent decision-making in tender evaluations, asserting judicial review is warranted when actions of administrative bodies exhibit arbitrariness b....
Rule 23(16)(iv) of Assam Public Procurement Act, 2020 is reproduced Bidders securing specified minimum percent of marks or having fulfilled specific minimum achievement norms as fixed may be consider....
The rejection of a bid must be based on relevant and material factors, and the decision-making process should not consider extraneous or irrelevant factors.
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