Point of Law: 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 considered as qualified.

JUDGMENT :

1. Heard Mr. AK Bhattacharyya, learned senior counsel assisted by Ms. G Goswami, learned counsel for the petitioner. Also heard Mr. D Saikia, learned Advocate General, Assam assisted by Mr. B Gogoi, learned counsel for the respondent Nos. 1 to 5 and Mr. D Das, learned senior counsel assisted by Mr. BD Deka, learned counsel for the respondent No. 6.

2. The grievance of the petitioner relates to his disqualification at the time of opening of the technical bids in relation to an e-Tender Notice dated 16.12.2022 issued by the Directorate, Animal Husbandry & Veterinary Department, Assam, whereby 181 numbers of mobile veterinary units vehicles are to be put into operation for establishment of MVU-Call Centre under the centrally sponsored scheme ESVHD-MVU under Livestock Health and Disease Control Program.

3. The petitioner herein has filed 2 (two) writ petitions, i.e., WP(C) No. 1169/2023 and WP(C) No. 1842/2023 against the same respondents. The respondent Nos. 1 to 5 are the State respondents, while the respondent No. 6 is the private respondent, who had been allotted the contract work in pursuance to the e-Tender Notice dated 16.12.2022.

4. In WP(C) No. 1169/2023, the petitioner has made a challenge to the minutes of the meeting dated 14.02.2023 of the Bid Process Management Committee, whereby the technical bid of the petitioner has been declared unresponsive. He has also prayed to declare the private respondent ineligible to be considered for the contract. In WP(C) No. 1169/2023, this Court had on the first day of listing of the case, i.e. on 01.03.2023, given a stay order to the effect that no further process should be undertaken with regard to the e-Tender Notice dated 16.12.2022 till the next returnable date. However, to the surprise of the petitioner, the contract had apparently been awarded to the respondent No. 6 earlier, vide order dated 28.02.2023 and as such, the same has been put to challenge in the later case i.e., WP(C) No. 1842/2023.

5. The petitioner’s counsel submits that the minutes of the Bid Process Management Committee meeting held on 14.02.2023, for evaluation of the report of the technical bid opening, the prospective bidders were to secure a minimum of 80 marks, which was lowered to 65 marks out of 100 marks to qualify for opening the financial bids of the tenderers. The petitioner having secured 90 marks, the disqualification of the petitioner’s bid at the stage of technical evaluation, by declaring the same as technically non responsive was not in consonance with the Clauses provided in the tender documents. He submits that the petitioner’s technical bid was declared as unresponsive, just because the petitioner was involved in 790 litigations, which included litigations against the NHM Authority of Rajasthan, CBI, investigation by the Enforcement Directorate, besides the stopping of the petitioner’s services relating to 144 Mobile Medical Units under the NHM, State Health Society, Madhya Pradesh, was unjustified and arbitrary, as the petitioner had secured the benchmark at the time of opening the technical bid.

6. The learned senior counsel for the petitioner submits that the petitioner’s technical bid had been disqualified on the basis of Clause 3.2 of Section 1 (Instructions to Bidders) and Clause 4.7. He submits that the disqualification of bidders in terms of the amendment to Clause 3.2 of the Instructions to Bidders (in short “ITB”) could only be made on account of blacklisting and for conviction of an offence under the Prevention of Corruption Act, 1988, the Indian Penal Code or any other law for the time being enforced at the time of submission of the bids. In other words, the learned senior counsel submits that mere pendency of litigations cannot be a ground for disqualification under Clause 3.2 or Clause 4.7 of the ITB. The petitioner’s counsel further submits that around 1,000 employees