The cancellation of a tender process must be based on valid reasons and cannot be arbitrary or illegal. Supply orders issued as a result of the tender process should be respected unless legally challenged.

JUDGEMENT AND ORDER :

1. Heard Mr. I. Choudhury, learned senior counsel assisted by Mr. K.P. Pathak, learned counsel appearing for the writ petitioner. Also heard Mr. Sisir Dutta, learned senior counsel assisted by Mr. S. Dutta, learned counsel for the respondent no. 6. Mr. D. Nath, learned Senior Government Advocate, Assam, has appeared for the respondent nos. 2, 3 & 4 whereas Ms. M.M. Kataky, learned Standing Counsel, Animal Husbandry and Veterinary Department, Assam, has appeared for the respondent nos. 1&5.

2. The writ petitioner herein is a company registered under the Companies Act, 1956, having its registered office at Maniram Dewan Road, Chandmari, Guwahati. Assailing inter alia the order dated 13/01/2023 issued by the Chief Executive Officer, Assam Live Stock Development Agency (ALDA) i.e. the respondent no. 3 herein cancelling the tender dated 26/05/2022, the instant writ petition has been filed.

3. The facts and circumstances of the case, leading to the filing of this writ petition, briefly stated, are as follows :-

(i) On 26/05/2022, the respondent no. 3 had issued Notice Inviting Bids (NIB), for open competitive bidding, for the purpose of awarding the work of supply of Pure Liquid Nitrogen (LN) for approximately 12 lakh litres. As per the NIB, it was a single stage two bid system. The tender value was Rs. 150 lakh and the bid security was Rs. 1 lakh. NIB dated 26/05/2022 had notified that the procedure to be followed for the tender would be as prescribed by “The Assam Public Procurement Act, 2017” and “The Assam Public Procurement Rules, 2020”, as amended from time to time. The last date of submission of bid was upto 03.00 p.m. of 17/06/2022. The bidders were required to submit hard copy of the technical bid on or before 18/06/2022, 02.00 p.m. The time for opening the technical bids was fixed on 20/06/2022 at 03.00 p.m. The price bid was to be opened online only in respect of the technically qualified bidders.

(ii) It appears that in response to the NIB, only one tender i.e. the bid of the writ petitioner was received. As such, by issuing a corrigendum dated 18/06/2022, the respondent no. 3 had modified the eligibility condition, as a result of which, the respondent no.6 also became eligible to participate in the tender process and was accordingly, permitted to submit its bid.

(iii) On opening the technical bids, it was found that the writ petitioner herein fulfills all the eligibility criteria. However, the respondent no. 6 did not fulfill the eligibility condition. As such, it was alleged by the petitioner that the bid submitted by the respondent no. 6 was technically non-responsive. Notwithstanding the aforesaid objection raised by the petitioner, the authorities had accepted the technical bid submitted by the respondent no. 6. On opening the price bids, the respondent no. 6 emerged as the lowest (L-1) bidder. However, supply orders were issued to both the bidders by bifurcating the total quantity of 12 lakh litres. The writ petitioner was awarded 4 lakh litres at the rate quoted by the L-1 bidder i.e. the respondent no. 6 whereas the balance quantity of 8 lakh litres was awarded to the respondent no. 6 as per the rate quoted by it.

(iv) Being aggrieved by the acceptance of the bid submitted by the respondent no. 6, the petitioner had preferred a statutory appeal under sections 38 (1) & (4) of the Assam Public Procurement Act, 2017 read with Rule 26 of the Assam Public Procurement Rules, 2020 before the appellate authority i.e. the Secretary of the Department, inter alia, contending that the respondent no. 6 did not fulfill the eligibility conditions and hence, its bid was technically non-responsive. Under the circumstances, no supply order could have been issued in favour of the respondent no. 6.

(v) Taking note of the grounds of appeal and after going through the record, the appellate authority had found that th