The Court upheld the cancellation of the tender process based on the lack of clarity in the Bid Evaluation Committee's findings and the public interest in procuring items through GeM.

JUDGMENT :

MICHAEL ZOTHANKHUMA, J.

1. Heard Mr. R.C. Saikia, learned counsel for the petitioner and Ms. M.D. Borah, learned Standing Counsel, WMD Department.

2. The petitioner has put to challenge the decision of the review meeting of the Tender Committee held on 21.03.2023, wherein the earlier tender process for procurement of battery operated hand sprayer machines, pursuant to the E-Tender notice dated 09.11.2022, has been cancelled by quoting point No. 37 of the instructions of the tender document.

3. The petitioner’s counsel submits that the petitioner had participated in the tender process, pursuant to the E-tender notice dated 09.11.2022 for procurement of battery operated hand sprayer machines.

4. It is the case of the petitioner that the petitioner’s bid was found responsive during the opening of the financial bid, though his bid was L2. However, the Bid Evaluation Committee having found the rate quoted by L1 at Rs. 1,700.80 much lower than the market price, L1 was not accepted on the ground that there was a possibility of compromising on the quality of the item to be procured. Accordingly, the Bid Evaluation Committee, vide meeting minutes dated 07.12.2022, decided to award the supply of battery operated hand sprayer machines to the second lowest bidder, i.e., the petitioner, who had quoted Rs. 2428/-.

5. As there was a delay in awarding the work to the petitioner, the petitioner approached this Court by filing a writ petition, being WP (C) No. 498/2023 and this Court while issuing notice, vide order dated 01.02.2023, stated that the pendency of the case would not be a bar for the State respondents to take a decision, in terms of the meeting minutes dated 07.12.2022 of the Bid Evaluation Committee, where it had decided to award the supply order to the petitioner. Subsequent to the above facts, a review meeting of the tender committee was held on 21.03.2023, wherein it cancelled the earlier tender process for procurement of battery operated hand sprayer machines by quoting point No. 37 of the instruction of the tender document, in pursuance to the letter dated 09.03.2023 issued by the Government of Assam.

6. The decision of the tender committee to cancel the tender, as reflected in the review meeting minutes dated 21.03.2023, is reproduced herein below as follows:

“After threadbare discussion with present all members of the Tender Committee and perusal of the Govt. direction vide Letter No. WMD-7/2023-WMD1/139912/2023, dated 09.03.2023, the earlier Tender process regarding procurement of Battery Operated Sprayer Machine is here by cancelled by quoting Point No. 37 of the Instruction of the Tender document.”

7. The letter dated 09.03.2023 issued by the Joint Secretary to the Government of Assam, Welfare Minutes and Development Department, which is reproduced herein-below as follows:

From:

The Joint Secretary to the Govt. of Assam

Welfare of Minorities and Development Department

To,

The Director

Char Areas Development Assam

Hengrabari, Guwahati

Subject: Regarding procurement of inputs/items under Directorate of Char Areas Development Assam for the year 2022-2023 under SOPD.

Ref: Letter No. CADA 303/2022-23/Agril/118/2795-96, dated 25th January, 2023

Sir/Madam

With reference to the letter on the subject cited above, I am directed to inform you that Finance Department has made the following observations regarding procurement of inputs/items:

(1) Finance Department has stated that once the financial bids are opened and bidders have been ranked in ascending order of their respective quotes, the justification provided by the Committee for rejecting L1 and recommending L2 seems to be insufficient. The justification for recommending L2 over L1 provided by the Bid Evaluation Committee wherein it is stated that “There is a possibility of compromising on the quality of the item, hence the rate of Rs. 1700.80 cannot be accepted as reasonable after the survey on the existing market price of the item” is not sufficient. Reasonableness is best gauged in r