IMPORTANT POINT
The acceptance of a non-responsive tender violates established tendering criteria and principles of fairness, leading to arbitrary and discriminatory treatment of compliant bidders.

JUDGMENT :

MANISH CHOUDHURY, J.

1. The writ petition under Article 226 of the Constitution of India has been instituted by the petitioner to challenge the award of a contract work, “Comprehensive Garbage Disposal from DBWS for 3 [three] years [2021-2024]” [‘the Contract-Work’ for short] made in favour of the respondent no. 3, by the respondent North East Frontier Railway.

2. The factual matrix of the case lies in a narrow compass. The necessary facts can be exposited, in brief, as follows:

The respondent North East Frontier Railway [‘the N.F. Railway’, for short] through its Chief Workshop Manager [CWM], Mechanical Workshop, N.F. Railway, Dibrugarh [the respondent no. 2] published a Notice Inviting Tender [NIT] on 07.10.2021 for the Contract-Work vide e-Tender Notice no. DBWS-NIET-06-2021-22 dated 07.10.2021 inviting open tenders through E-Tendering System from competent firms/contractors. As per the NIT, the approximate cost of the Contract-Work was Rs. 56,07,360/-inclusive of GST @ 18%. The NIT notified that the tenders in response to the NIT, would be accepted up-to 15-00 hours, 29.10.2021 and the tenders would be opened at 15-30 hours, 29.10.2021. The NIT and the Tender Document containing the Instructions to Tenderers and Conditions of Tenders, set forth the Minimum Eligibility Criteria. As per the NIT, the Tenderers were required to fulfill the Technical Eligibility Criteria, Financial Eligibility Criteria and Special Criteria contained therein in Clause 1.1, Clause 1.2 and Clause 1.3 respectively. As per Clause 1.4 of the NIT, non-compliance of any of the conditions set forth thereinabove would result in the tender being rejected. Similar Technical Eligibility Criteria, Financial Eligibility Criteria and Special Criteria were also prescribed in Clause 10.1, Clause 10.3 and Clause 10.4 of the Tender Document containing the Instructions to Tenderers and Conditions of Tenders. Clause 10.5 therein had made it clear that non-compliance of any of the conditions set forth thereinabove would result in the tender being rejected.

2.1. In response to the NIT, 5 [five] nos. of tenders were received by the respondent N.F. Railway authorities. Apart from the petitioner, the other 4 [four] tenderers were: [i] M/s Aardi Commercial, [ii] Biswajyoti Bora [the respondent no. 3], [iii] M/s Dynamic Enterprise and [iv] M/s Maa Virasini Construction and Material Supplier. After receipt of the tenders through the e-Procurement Portal, the Techno-Commercial Bids and the Financial Bids were uploaded in the e-Procurement Portal of the N.F. Railway. On opening of the bids, the respondent no. 3 was declared as the lowest tenderer [L-1] and the petitioner herein was declared as the 5th lowest tenderer [L-5].

3. In the Techno-Commercial Bid tabulation, uploaded in the e-Procurement Portal by the respondent N.F. Railway authorities, the documents attached by the participant tenderers in respect of the Special Criteria were mentioned and they were: [i] MSME Certificate by M/s Aardi Commercial, [ii] Pollution Certificate by Biswajyoti Bora [the respondent no. 3], [iii] Undertaking letter by M/s Dynamic Enterprise, [iv] ISO Certificate and letter pad 1 by M/s Maa Virasini Construction and Material Supplier, and [v] Pollution Authorisation by the petitioner. The present writ petition has been preferred questioning the fulfillment or non-fulfilment of the Special Criteria by the other participant tenderers including the respondent no. 3.

4. It is noticed that though notice was served upon the respondent no. 3 by way of dasti, as reflected from the affidavit submitted by the petitioner, none has appeared for the respondent no. 3 and the Court, by Order dated 13.09.2022, had observed that the service of notice upon the respondent no. 3 was duly affected.

5. I have heard Mr. P.J. Saikia, learned Senior Counsel assisted by Mr. R.S. Mishra, learned counsel for the petitioner and Ms. U. Chakraborty, learned Special Senior Railway Counsel for the respondent nos. 1 & 2.

6.