The decision to award a tender contract must be arrived at after objective consideration and evaluation and cannot be interfered with if not found to be arbitrary, malafide, irrational, unreasonable, or biased.

JUDGMENT :

S. Mehta, J.

The instant intra-Court writ appeal is preferred by the appellant herein for challenging the judgment dated 25.08.2022 passed by the learned Single Bench in WP(C) 2924/2021, accepting the writ petition preferred by the respondent no.6 herein/writ petitioner.

Brief facts:

1. A Notice Inviting Tender (NIT) dated 21.12.2020 was issued by the Chief Engineer, PWD (Roads Division), Assam, for construction of roads in the Bodoland Territorial Council (BTC) area under State Owned Priority Development-G (SOPD-G) for the year 2019-2020. The appellant Pabitra Boro as well as the respondent no.6 Bhaba Dev Mahanta, the writ petitioner and so also a few other bidders claiming to be qualified in all aspects participated in the bidding process for construction of the roads in question under package No. SOPD-G-19-20-47. The bids of the writ petitioner Bhaba Dev Mahanta as well as the appellant were declared to be technically responsive. The bids of the appellant and the writ petitioner were equal on financial aspects and both were equally placed on the price quoted. The bid of the appellant was accepted by the Chief Engineer.

Being aggrieved, the writ petitioner Bhaba Dev Mahanta filed the afore-stated writ petition claiming that the bid of the respondent no. 6 in the writ petition, Pabitra Boro, was defective/incomplete as the same did not meet the mandatory requirements of Clauses 4.3(f) and 19.2(a)(iii) of the tender conditions but in spite thereof bid of the appellant was declared to be technically responsive and a Letter of Acceptance (LoA) dated 26.02.2021 was issued in his favour though the financial bids of the writ petitioner and the respondent no.6/appellant herein were equally placed. Accordingly, Bhaba Dev Mahanta filed the writ petition questioning the award of LoA to the respondent no.6/appellant herein, namely, Shri Pabitra Boro.

2. The learned Single Bench while entertaining the writ petition, directed maintenance of status quo, which was extended from time to time. After receiving the pleadings of the parties, hearing the arguments advanced at the Bar and appreciating the material available on record, the learned Single Bench went to hold that the bid of Pabitra Boro, i.e. appellant herein, was not compliant of the tender conditions on the ground that the same was in violation of Clause 4.3 of the tender documents, which required the bidders to state their financial standing for the last five years. As the bid of Pabitra Boro was incomplete on that aspect and the same was declared to be technically non-responsive. Accordingly, the decision of the tendering authorities to hold the bid of the respondent no.6/appellant herein responsive and the Letter of Acceptance dated 26.02.2021 issued in favour of the said respondent were quashed while accepting the writ petition by the impugned judgment. Shri Pabitra Boro (respondent no.6 in the writ petition) has preferred the instant intra-Court writ appeal challenging the impugned judgment dated 25.08.2022.

3. During pendency of the writ appeal and while hearing the arguments advanced at the Bar, this Court received a suggestion from learned Advocate General, Assam, Mr. D. Saikia that the State Government was prepared to re-examine the matter keeping in view the financial bids and other associated documents submitted by the equally placed bidders and to take an objective decision regarding allotment of the works in question. The authorities were permitted to undertake this exercise vide order dated 28.02.2023. Accordingly, the matter was re-examined at the end of the authorities and after giving due consideration to the facts and figures submitted by the equally placed L-1 bidders, i.e. the writ petitioner and the appellant herein, a speaking order dated 09.03.2023 was passed concluding that since all the L-1 bidders were financially stable as per their submitted documents, past experience became the key factor and, taking note of the past performance in completion