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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
NELSON SAILO, J.
Prasad and Company (Project Works) Pvt. Ltd. and Another – Petitioners
Versus
National Building Construction Corporation Limited – Respondent
WP (C) Nos. 76, 77 of 2024
Decided On : 22-08-2024
Tender - Writ Petition - NIT Clauses - The Court analyzed the eligibility criteria under the NIT, emphasizing the necessity for compliance with both Clause A(iii)(a) and A(iii)(b) for awarding contracts, ultimately ruling against the petitioners' claims.
Fact of the Case:
The petitioners challenged the award of a contract to the respondent No. 8, arguing that the latter did not meet the eligibility criteria specified in the Notice Inviting e-Tender (NIT) for a project in Mizoram.
Finding of the Court:
The Court found that the respondent No. 8 did not satisfy the minimum eligibility criteria as per the NIT, particularly regarding the required work experience, but declined to interfere with the ongoing contract due to public interest considerations.
Issues: Whether the writ petitions were maintainable and whether the respondent No. 8 met the eligibility criteria set forth in the NIT for the contract award.
Ratio Decidendi: The Court held that both clauses A(iii)(a) and A(iii)(b) of the NIT must be read together, and the respondent No. 8 failed to meet the necessary criteria, yet the ongoing work's public interest outweighed the petitioners' claims.
Result: The writ petitions are dismissed, allowing the ongoing work to continue.
JUDGMENT :
NELSON SAILO, J.
1. This Order will dispose of both the writ petitions. The parties in both the writ petitions are one and the same except Surya Roshini Ltd., who was found to be L2 in the price bid is not a party in the second writ petition filed by the petitioners. The writ petitions were initially filed in the Principal Seat at Guwahati but later on they were transferred to the Aizawl Bench of the Gauhati High Court and renumbered. The grievance projected by the petitioners is that the Notice Inviting e-Tender (NIT) dated 10.11.2023 has been arbitrarily and illegally settled in favor of the respondent No. 8 in violation of the terms and conditions of the NIT and that the petitioners being the third lowest tenderers and duly qualified to undertake the work in terms of the NIT should be allotted the work.
2. Brief facts of the case is that the respondent Nos. 1 to 6 floated NIT dated 10.11.2023 for Supply, Fixing, Testing and Commissioning (SITC) of LED Flood Light in Dampa Tiger Reserve Forest (DTRF) area from near BP No. - 2313 to near 2305/2-RI along Indo-Bangladesh Border in Mizoram State for approximate length of 60 Km. The estimated cost of the work was Rs. 53,93,97,046.00 which is divided into two (2) parts namely, Part-A and Part-B. Part-A is for the execution of the work amounting to Rs. 47,57,00,082.00 and Part-B which is for the maintenance and amounting to Rs. 6,36,96,964.00. The completion period for the project is 15 months and the time given for operation of maintenance after handing over the project is 12 months. As per the NIT, the last date and time of submission of online tender was up to 26.12.2023 by 11 AM (IST). The technical bid was to be opened at 11:30 AM of 26.12.2023 and the date and time of opening of the financial bid was to be intimated later on.
3. Three (3) firms including the writ petitioners participated in the tender process and submitted their respective bids. The technical bid was opened on 26.12.2023 as was scheduled and it was then that, the petitioners came to learn about the deficiencies in the technical bid of the respondent No. 8. The petitioners therefore submitted their representations before the respondent authorities but despite assurance given to them as the grievance projected were not addressed and the respondent authorities proceeded to open the price bids on 12.01.2024. As per the price bids offer, the petitioners were found to be L3 while the private respondent Nos. 7 & 8 were placed at L1 and L2 respectively. Since the grievance projected by the petitioners was not addressed, the petitioners filed WP (C) No. 434/2024 in the Principal Seat of this Court which on transfer has been renumbered as WP (C) No. 76/2024. During the pendency of the writ petition, since the respondent authorities have issued the Letter of Award (LOA) in favor of the respondent No. 8 on 30.01.2024, the petitioners filed their second writ petition i.e., WP (C) No. 787/2024 which again on transfer to the Aizawl Bench has been renumbered as WP (C) No. 77/2024. This Court on 25.01.2024 while issuing notice of motion declined to pass any interim order but however observed that the work which was issued to the respondent No. 8 shall be subject to the outcome of the writ petition. Since the respondent No. 7 despite being L1 was not issued the LOA, the respondent No. 7 has failed to appear despite notice in WP (C) No. 76/2024 and consequently was struck off from the arrayed respondents vide order dated 09.04.2024 on the prayer of the counsel for the petitioners.
4. Mr. H. Buragohain, learned counsel for the petitioners submits that the main grievance of the petitioners is that the respondent No. 8 was awarded the LOA despite not having the work experience of one similar work of the value which is not less than 80% of the estimated cost put to tender in the instant case. He submits that as per the calculation of the official respondents themselves, the respondent No. 8 was required to have one work execu
The Court established that compliance with all eligibility criteria in tender documents is essential, but public interest may prevent judicial interference in ongoing contracts.
Judicial review in contractual matters is limited to evaluating decision-making processes and does not extend to substituting the authority's decisions unless clear evidence of arbitrariness or mala ....
An unsuccessful bidder lacks standing to challenge the issuance of a Letter of Intent when disqualified for failing to meet mandatory requirements.
An unsuccessful bidder cannot challenge the award of a tender if disqualified in the technical evaluation, as they lack standing to do so.
A bidder must demonstrate work experience 'in his own name' as per tender requirements; failure to hear a necessary party warrants review.
The court ruled that bids below the justified rate are non-responsive, emphasizing judicial respect for expert evaluations in tendering processes.
(1) Disputes arising out of purely contractual obligations cannot be entertained by High Court in exercise of extra-ordinary writ jurisdiction.(2) A wrong doer ought not to be permitted to make profi....
The court emphasized the limited scope of judicial review in contractual matters and the deference to be given to the interpretation of the tender document by the author. It also clarified that the w....
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