The rejection of a bid in a government tender must be in accordance with the tender conditions, and any deviation from the specified format, such as password protection, can lead to justified rejection.

JUDGMENT :

ARUN DEV CHOUDHURY, J.

1. Heard Mr. K. Goswami, learned Senior Counsel assisted by Mr. A. Khanna, learned counsel for the appellant. Also heard Mr. K.N. Choudhury, learned Senior Counsel assisted by Mr. N. Deka, learned counsel appearing for the respondent No. 2 and 3 and heard Dr. A. Saraf, learned Senior Counsel assisted by Mr. P. Baruah, learned counsel for the respondent No. 4.

2. The factual background of the case:

(I) The present intra court appeal is directed against the Judgment and Order dated 27.06.2023 passed in WP (C) No. 96/2023.

(II) The appellant before this Court was one of the bidders in respect of a tender invited by the respondent no. 2, Numaligarh Refinery Limited (hereinafter to be referred to as NRL) being NIT bearing no. TK-1P25A-MP-RFQ-0034 dated 25.10.2022 for supply of Reactor and Regenerator package for PFCC Unit as per technical specifications for NRL, Assam, India.

(III) The NIT invited was on an open global e-tender basis under a single stage 2 bid system, Part-I techno commercial bid (un-priced bid) and Part-II (price bid).

(IV) In response to the said NIT invited by the respondent no.2, the appellant as well as respondent no. 4 submitted their bids. Both the bidders were found to be responsive in the techno commercial evaluation.

(V) Subsequently, when the price bids were opened on 26.12.2022, the price bid of the appellant could not be opened in the Portal as it was found to be password protected.

(VI) As per the clauses of the NIT, a system generated BoQ Statement is to be taken out upon opening of the price bids. As the price bid of the appellant could not be opened, the BoQ system generated statement revealed the details only with regard to respondent no. 4. In so as the appellant is concerned, the particulars of the price bid and the items were not reflected.

(VII) The appellant as a writ petitioner approached this Court by way of filing WP (C) No. 96/2023. By the impugned Judgment and Order dated 27.06.2023, the learned Single Judge dismissed the writ petition by holding that there is no infirmity in the decision making process and also in the decision itself taken by the NRL to reject the price bid of the petitioner (the appellant herein). The writ petition was found to be devoid of merit and was accordingly dismissed vide judgment dated 27.06.2023 which is assailed in this intra Court appeal.

3. Arguments advanced on behalf of the appellant.

Assailing such judgment, Mr. K. Goswami, learned Senior Counsel advanced the following arguments:

(I) In terms of tender clause, the BoQ statement generated by system is not conclusive and actual comparative tabulation is required to be prepared in PDF format after downloading from the system and then only, the final comparative statement is required to be prepared and therefore, without reaching such stage, the price bid of the appellant could not have been rejected. However, the learned Single Judge misinterpreted the tender Clause and held such rejection on technical ground to be the final one.

(II) Under Clause-39 of the tender, though there is a contemplation that there should not be any password protection in technical bid, however, such restriction not being specifically imposed in respect of price bid, the price bid of the appellant could not have been rejected for the reason that the appellant uploaded the price bid with password and log in credentials, however, the learned Single Judge has failed to appreciate such fact.

(III) As the tender clauses authorizes the tendering authority to seek clarification from the bidder and the tendering authority has sought for the log in credentials of the appellant, as such, after receipt of such credentials and passwords provided by the appellant, the reason for rejection was no more available. However, the learned Singe Judge has given undue importance to such inadvertent mistake on the part of the appellant which was otherwise inconsequential for the evaluation process after being rectified at the behest