IMPORTANT POINT
The court upheld the rounding off of bid prices to the nearest rupee, confirming compliance with tender clauses and rejecting hyper-technical challenges.

JUDGMENT :

Heard Mr. S Hoque, learned counsel for the petitioner. Also heard Mr. SR Boruah, learned counsel for the respondent Nos. 1 & 2.

2. Mr. S Hoque, learned counsel for the petitioner submits that in terms of Clause 29(IV) of the Notice Inviting Tender (NIT), a bid value beyond 10% below the estimated amount cannot be considered and would have to be rejected as non-responsive.

3. The petitioner’s counsel submits that the petitioner’s bid was exactly 10% below the estimated price. However, the bid value of the respondent No.3 was beyond 10% below the estimated price, i.e., by 43 paise.

4. The petitioner’s counsel submits that the bid of the petitioner, the respondent No. 3 and one other tenderer Harshajit Roy, who is not a party to the case, are as follows:-

Petitioner (L3) - Rs.10298700.00

Harshajit Roy (L2) - Rs.10298699.99

Respondent No. 3 (L-1)- Rs.10298699.57

5. The petitioner’s counsel submits that as the bid of the respondent No. 3 was lower than 10% below the estimated amount by 43 paise, the said bid amount would have to be rejected as nonresponsive, in terms of Clause 29(IV) of the NIT. Similarly, would be the fate of the bid of Harshajit Roy, whose bid was lower than 10% below the estimated amount by 1 paise. However, the bid of the respondent No. 3 has been held to be L-1 and the bid of the petitioner has been held to be L-3, even though the petitioner’s bid amount was exactly 10% below the estimate value of the contract. He submits that once the bid of the respondent No. 3 or any other person is below 10% of the estimated amount in terms of Clause 29(IV) of the NIT, the financial bid of the respondent No. 3 and Harshajit Roy would have to be considered to be non-responsive in terms of Clause 26(III) of the NIT. He accordingly submits that the acceptance of the bid of the respondent No. 3 by the Chief Engineer (Technical) Department of Housing & Urban Affairs, Guwahati, vide letter of acceptance dated 20.11.2024 for the contract work, should be set aside and the said contract work should be allotted to the petitioner.

6. Mr. SR Boruah, learned counsel for the respondent Nos. 1 & 2 submits that the bid of the respondent No. 3 was lower than 10% below the estimated amount by 43 paise. However, the Tender Committee had to follow the Notification No. CRD.119/2003/5 dated 21.09.2004, issued by the Commissioner & Special Secretary, Government of Assam, PWD, wherein rounding up of the bid price to the nearest rupee value was to be done. The counsel for the respondent Nos. 1 & 2 submits that in view of the rounding up of the bid price of the respondent No. 3 to the nearest rupee, there has been no violation of Clause 29(IV) of the NIT. He further submits that besides the above, the bid capacity of the respondent No. 3 was significantly better than the bid capacity of the petitioner in terms of Clause 29(V) of the NIT. He accordingly submits that the writ petition should be dismissed.

7. I have heard the learned counsels for the parties.

8. Clause 26(III), Clause 29(IV) and 29(V) of the NIT are reproduced herein below as follows:-

“26(III) If a “Financial Bid” is not substantially responsive, it will be rejected by the Employer, and may not subsequently be made responsive by correction or withdrawal of the non-conforming deviation or reservation.

29(IV) Quoted bid value of beyond 10% (ten percent) below of the estimated amount shall not be considered for award. Rates quoted by the Bidder beyond 10% lower than the estimated rates shall be rejected as non-responsive.

29(V) In case more than 1(one) bidder stand as L1 as per the Comparative Statement of Financial Bids, the employer will decide & allot the award of contract to bidder, whoever found suitable through analysis to carry out the contract. The solely decision of the Department/Employer what so ever in this regard shall be final and binding upon each bidder. Every bidder shall carefully pursue this clause and his tender accordingly. If the tenderer submits his bid it will be p