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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
HON’BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI, HON’BLE MR. JUSTICE SUMAN SHYAM, J.
SANJAY KR. SINGH S/O LATE BALRAM SINGH – Petitioner
Versus
PURBANCHAL BUILDTECH PVT. LTD. – Respondent
WA Nos. 36, 49 of 2024
Decided On : 02-08-2024
BID EVALUATION - TENDER PROCESS - Clause 2.6.2 of RFP - The court discussed the interpretation of Clause 2.6.2 of the Request for Proposal (RFP), which mandates disclosure of ongoing commitments by bidders. The court emphasized that a company is a separate legal entity from its directors, and thus, the non-disclosure of works pending in the name of a director, which had not been transferred to the company, did not constitute misrepresentation. The court concluded that the Technical Bid Evaluation Committee's decision to declare the company's bid as non-responsive was unreasonable and set aside the decision, directing the consideration of the financial bid.
Fact of the Case:
The PWD (NH), Assam, invited bids for a construction project. The company, along with other bidders, submitted bids. The Technical Bid Evaluation Committee declared the company's bid non-responsive due to alleged misrepresentation regarding ongoing works of its director, Md. Matlebuddin Ahmed. The company contested this decision in a writ petition, arguing that the works in question had not been transferred to it and were not required to be disclosed.
Finding of the Court:
The court found that the Technical Bid Evaluation Committee's reliance on the non-disclosure of works in the name of the director was misplaced, as those works had not been transferred to the company. The court agreed with the learned Single Judge's conclusion that the company was not obligated to disclose the director's pending works, leading to the decision being set aside.
Issues: Whether the company was required to disclose ongoing works in the name of its director in its bid, and whether the Technical Bid Evaluation Committee's decision to declare the bid non-responsive was justified.
Ratio Decidendi: The court held that a company is a separate legal entity from its directors, and non-disclosure of works pending in the name of a director, which had not been transferred to the company, does not amount to misrepresentation under Clause 2.6.2 of the RFP. The decision of the Technical Bid Evaluation Committee was deemed unreasonable.
Final Decision: The court set aside the decision of the Technical Bid Evaluation Committee, allowing the writ petition and directing the consideration of the company's financial bid.
JUDGMENT :
VIJAY BISHNOI, C.J.
1. Heard Mr. B.D. Konwar, learned senior counsel appearing for the appellant in WA No. 36/2024 and for the respondent No. 3 in WA No. 49/2024; Mr. D. Nath, learned Senior Government Advocate, Assam appearing for the appellants in WA No. 49/2024 and respondent Nos. 3 to 6 in WA No. 36/2024. Also heard Mr. K.N. Choudhury, learned Senior Counsel, appearing for the respondents.
2. These writ appeals are filed by the appellants being aggrieved by the judgment and order dated 21.05.2024 passed by the learned Single Judge in WP(C) No. 3958/2023, whereby the writ petition filed on behalf of the respondent No. 1 (in short “company”) has been allowed and the decision making process of the Bid Evaluation Committee leading to the rejection of the bid of the company has been set aside with the further direction to consider the financial bid filed by it and to allot the work in question to L-1 bidder in accordance with law.
Since both these appeals have been filed against the same impugned judgment and order, both these appeals have been heard together and are being disposed of by this common judgment and order.
3. The brief facts of the case are that the PWD (NH), Assam, had floated a Notice Inviting Tender (NIT) on 11.04.2023 inviting bids from the interested bidders for the work “ Periodic Renewal of Makum-Rupai Bypass from Km. 0.000 to Km 23.482 (L=23.482 Km) under ARP for 2022-23 under EPC Mode under Dibrugarh NH Division in the State of Assam. (Job No. TA/15/2022-23/266) Package No. PWDNH(R)/DIB/2023-24/EPC/01”. In response to the said NIT, the company, the appellant in WA No. 36/2024 and four other bidders submitted their technical and financial bids.
4. Prior to the evaluation of the technical bids of the above referred bidders, the appellant in WA No. 36/2024 filed a complaint against the company and other, namely, M/s M.K. Hatibaruah & Co., alleging that both of them had not disclosed about their ongoing works and, as such they had violated the conditions mentioned in Clause No. 2.6.2 of the Request For Proposal (RFP) (Bid Document). The Technical Bid Evaluation Committee in its meeting held on 14.06.2023 evaluated the technical bids submitted by the bidders and declared the technical bid of 4 number of bidders, namely, M/s Tapan Dutta, Kaushal Sharma, M/s M.K. Hatibaruah and the company as nonresponsive bids, however, declared the bids submitted by N.K. Agarwalla and Sanjay Kumar Singh, the appellant in WA No. 36/2024, as responsive. In respect of the technical bid of the company, it is mentioned in the minutes of the meeting of the Technical Bid Evaluation Committee that the bid submitted by the company was declared as non-responsive because there was deliberate misrepresentation of facts by the company in violation of Clause 2.6.2 of the Request for Proposal (RFP) (Bid document).
5. Being aggrieved with the same, the company preferred the above referred writ petition contending that the company is a registered private limited company consisting of three Directors, namely, Md. Matlebuddin Ahmed, Babul Deka and Bhaskar Goswami, and after inception of the company on 02.06.2022, it was registered by the Chief Engineer, PWD (NH), Assam, as a Class-1(A) category contractor under PWD (NH) for the year 2020-2023. It was further contended in the writ petition that the registration of Md. Matlebuddin Ahmed as contractor was cancelled by the Chief Engineer, PWD (NH), Assam vide office order dated 21.07.2022 as per application submitted by him and, consequently, all works under PWD (NH), Assam, allotted to Md. Matlebuddin Ahmed were transferred in the name of the company.
6. It was also contended that thereafter the company got registered as a Class-1 (A) category contractor for the year 2022-2025 under PWD (Roads), Assam vide Registration Certificate dated 11.11.2022. However, no order of transferring of pending works in PWD (Roads) in the name of its director Md. Matlebuddin Ahmed was issued by the Chief Engineer P
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