Point of Law : employer is the best person to understand and appreciate its requirement and interpret its documents. Even if such interpretation given or acceptance of tie-up is not acceptable to this court, the same cannot be a ground for interfering with the interpretation given.

JUDGMENT :

Heard Mr. U.K. Nair, learned Senior counsel assisted by Mr. A.K. Sarma, learned counsel for the petitioner. Also heard Mr. B. Gogoi, learned standing counsel for the NHM and Mr. P. Nayak, learned counsel representing respondent No. 3.

2. This writ petition is preferred challenging the decision of the Technical Bid Evaluation Committee (in short Technical Committee) in declaring the bid of respondent No. 3 to be technically responsive in the Tender Process relating to work of up-gradation of existing Tangla CHC to SDCH in Udalguri district. It is the case of the petitioner that respondent No. 3 did not furnish the details of the subcontracting firm while making proposal for sub contract and the Technical Committee though rejected such proposal but declared it to be a technically responsive bidder allowing the respondent No.3 to have tie up with the same entity for using Electrical license.

3. Initially interim order prayed for by the petitioner was not granted by this court and being aggrieved, the petitioner approached the Hon’ble Division Bench. The Hon’ble Division Bench by order dated 10.09.2021 passed in WA 194/2021 was pleased to remand the matter to this court to reconsider the issue whether, despite being nonresponsive on the ground as alleged by the writ appellant, the work can still be awarded to the respondent No. 3. While remanding back the matter and till such a decision by the court, it was directed to the authorities not to issue any work order.

4. Background facts:

(I) The petitioner, BK Construction, a partnership firm participated in the tender process floated by the respondent NHM by its Notice Inviting Tender dated 24.05.2021 for “up-gradation of existing Tangla CHC to SDCH in Udalguri district” under National Health Mission Assam on turnkey basis.

(II) The petitioner along with 7 others including respondent No. 3 participated in the tender process.

(III) The respondent authorities more particularly the Technical Committee, declared respondent No. 3 as the responsive bidder along with the petitioner and three others.

(IV) Such decision is under challenge in the present writ proceeding.

5. Submission of Mr. U.K. Nair, learned Senior counsel for the petitioner:

(I) The provision of clause 4.3 (xi) permits submission of proposal for subcontracting some component of the work and such proposal is required to be made by the bidder declaring the qualifications and experience of the identified subcontractor in the relevant field along with the bid.

(II) Taking to clause 4.5 (a), Mr. Nair submits that the said clause mandates that the contractor must possess valid electrical license, anti-termite license etc. and clause 4.6 of the bid documents further mandates that except to the extent stated in clause 4.5(i) of the tender document, the subcontractor’s other experience and resources shall not be taken into account towards determining the bidder compliance.

(III) Mr. Nair further submits that respondent No. 3 declared one M/s Solitaire Enterprise to be its subcontractor for electrical works and submitted a notarized affidavit in proof of it. Thus, respondent No. 3 proposed M/s. Solitaire to be its sub contractor as per clause 4.3(xi), its subcontractor for the execution of electric work, submits Mr. Nayar, learned Senior Counsel.

(IV) A bare perusal of the decision of the Technical Committee reflects that respondent No. 3 had failed to furnish details of the Subcontractor in the table, which is a mandatory requirement as per clause 7 of part 3 of the GCC, though the proposal of subcontracting was made. Despite such findings, respondent No.3 was declared to be a responsive bidder, submits the Learned Senior Counsel.

(V) It was further finding by the Technical Committee that the undertaking given by respondent No. 3 relating to subcontract and the information given as per clause 7 are mismatched and sufficient data was not available for evaluating the subcontracting value. Despite such defect and failure on the part of re