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IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
HON’BLE MR. JUSTICE MANASH RANJAN PATHAK
Khagen Konch, Son Of Late Sona Ram Konch – Petitioner
Versus
The State Of Assam Rep. By Commissioner And Secretary To The Govt. Of Assam, Water Resource Department And Ors. – Respondents
WP(C)/290/2022
Decided On : 30-03-2022
TENDER PROCESS - Writ Petition challenging re-tender - Article 14, 16, 19 of the Constitution of India - The court discussed the principles of fairness and transparency in public procurement, emphasizing that the state has the discretion to cancel tenders and issue new ones, especially when there is a lack of competition. The court highlighted that the absence of a formal contract means no vested rights for bidders, and the decision to re-tender was justified in the interest of public welfare.
Fact of the Case:
The petitioner challenged a re-tender notice issued by the Water Resources Department for civil work on the Gainadi embankment, arguing that the re-tender was arbitrary and violated principles of natural justice, as his financial bid had been accepted in a previous tender process.
Finding of the Court:
The court found that the re-tender was justified due to the lack of competition, as the petitioner was the only responsive bidder in the previous tender. The court ruled that the authorities acted within their rights to issue a re-tender and that the petitioner had no vested rights since no contract was awarded.
Issues: Whether the re-tender process was arbitrary and violated the petitioner's rights under Articles 14, 16, and 19 of the Constitution, and whether the petitioner had a legitimate expectation of being awarded the contract based on the previous tender process.
Ratio Decidendi: The court held that the state has the discretion to cancel tenders and issue new ones, especially when there is no real competition. The absence of a formal contract means that bidders do not have vested rights, and the decision-making process must be free from arbitrariness and favoritism.
Final Decision: The writ petition was dismissed, and the interim order preventing the re-tender process was vacated.
ORDER :
HON’BLE MR. JUSTICE MANASH RANJAN PATHAK
Heard Mr. B. D. Deka, learned counsel for the petitioner and Mr. B. Goswami, learned Additional Advocate General, Assam, for the official respondent Nos. 1 to 4 in the Water Resources Department, Assam.
2. Petitioner has challenged the Notice Inviting Tender (re-tender e-notice in two bid system of Technical and Finance) under reference No. DHM/SOPD/ GAINADI/2021-22/1 dated 07.01.2022 issued by the Additional Chief Engineer (ACE), Upper Assam Zone (UAZ), Water Resources Department (WRD), Dibrugarh, respondent No.2, for the civil work of “Raising and Strengthening along with extension of Gainadi both bank embankment on Down-Stream of National Highway-15” (hereinafter referred to as the said work) under Dhemaji Water Resources Division at Tender Value of Rs. 18,11,18,349/-, fixing Bid Publishing time and Date as 06:00 PM of 07.01.2022, Bid Submission Start Time and Date as 10:00 AM of 10.01.2022, Bid Submission End Time and Date as 02:00 PM of 17.01.2022, and Bid Opening Time and Date as 03:00 PM of 17.01.2022, with Bid Opening Place at Dibrugarh.
3. It is contended by the petitioner that for the same work, the ACE, UAZ, WRD, Dibrugarh, respondent No.2, vide No. ACE/WR/G-197/2021/47 dated 25.11.2021 issued e-‘Press Notice for Bid’ along with other works under Dhemaji Water Resources Division, Dhakuakhana Water Resources Division and North Lakhimpur Water Resources Division. It is stated that for the said work in terms of said e-bid dated 25.11.2021, the petitioner along with others submitted their bids, and on 04.01.2022, the concerned Bid Evaluation Committee evaluated the Technical Bids of the bidders. Finding the Technical Bids of three bidders for the said work, including the petitioner, out of four such bidders, the Bid Evaluation Committee admitted those three Bids with the recommendation that Financial Bid of the successful bidders may be opened.
4. On 04.01.2022 itself, the three Financial Bids of those three successful bidders were opened and the concerned Bid Evaluation Committee on evaluating those Financial Bids, rejected Financial Bids of other two bidders as the quoted value offered by them were found to be less than the Allowable Lowest Quoted Value (ALQV) whereas the value quoted by the petitioner in his financial bid for the said work was admitted by the said Committee.
5. Petitioner also stated that as the respondents in the WRD without issuing any formal order and/or corrigendum cancelling or recalling the earlier tender process issued on 25.11.2021 for the said work and issued re-e-tender for the said work on 07.01.2022 fixing 17.01.2022 as the date of bid opening, the petitioner on 10.01.2022 submitted a representation before the Chief Engineer, WRD, Chandmari, Guwahati stating his grievances against the said act.
6. Since the authorities in the WRD did not consider his said representation dated 10.01.2012, the petitioner on 17.01.2022 filed this writ petition.
7. Petitioner submitted that action of the respondents in the Water Resources Department in issuing the fresh e-tender for the same work on 07.01.2022, more particularly without issuing any formal order for cancellation of the earlier tender process for the said work and without citing any reason, being arbitrary in nature, the said re-tender dated 07.01.2022 should be set aside and quashed.
8. Petitioner also submitted that pursuant to the earlier e-tender dated 25.11.2021 for the said work, sufficient participation were there, where the authorities had the opportunity to compare the financial bids of three technically qualified bidders, out of which petitioner’s bid was admitted and therefore, there is no apparent reason for issuance of a fresh tender in respect of the said work. Since the action of the respondents in the Water Resources Department keeping him on lurch, without offering any satisfactory explanation, therefore petitioner urged that the said action in issuing the fresh e-tender for the said work
The court emphasized the need for fairness and transparency in the tender process and held that the principles of judicial review apply to prevent arbitrariness or favoritism in the exercise of contr....
Court exercising powers under Article 226 of Constitution of India has jurisdiction to examine decision making process without even going into merits of such decision.
public authorities must be left with the same liberty as they have in framing the policies - Contracts are legally binding commitments and they commit the authority which may be held to be a State wi....
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