IMPORTANT POINT
The court emphasized strict compliance with tender conditions, ruling that the Local Content Certificate must be submitted in the name of the Joint Venture, and deviations from prescribed formats are impermissible.

JUDGMENT :

MICHAEL ZOTHANKHUMA, J.

1. Heard Mr. D. Saikia, learned Senior Counsel assisted by Mr. S. Deka, learned counsel for the petitioner. Also heard Mr. I. Choudhury, learned Senior Counsel assisted by Mr. T. Das, learned counsel for the respondent nos. 3 & 4, Mr. M.Z. Ahmed, learned Senior Counsel assisted by Mr. A.M. Dutta, learned counsel for the respondent no. 5, Mr. K.N. Choudhury, learned Senior Counsel assisted by Mr. N. Gautam, learned counsel for the respondent no. 6. Mr. D.J. Das, learned counsel appears for the respondent nos. 1 & 2.

2. The petitioner’s grievance in this writ petition is against the rejection of his technical bid on the ground that the Local Content (Make in India) Certificate dated 17.08.2024, submitted by the petitioner as a clarification sought by the State respondents vide Request No. 1 on 16.08.2024, was disqualified on the ground that the clarification dated 17.08.2024 was not in consonance with Clause 19.2(II)(B) of the Additional Terms & Conditions (Instruction to Bidder). As per Clause 19.2(II)(B) of the Additional Terms and Conditions in the Bid Document (hereinafter referred to as the ‘ATC’), whenever a clarification is required to be made in relation to some deficiency in the uploaded documents of a bidder, the shortfall information/documents sought for must pre-exist the date of opening the tender and should not have undergone any change since then.

3. In the present case, the last date of submission of tender/bids was 05.08.2024. The Local Content (Make in India) Certificate, submitted by the petitioner as a clarification to Request No. 1 was dated 17.08.2024. Clause 19.2(II)(B) of the ATC states as follows:

“19.2 Evaluation of Tender:

(II) For Two Part System:

(B) In case the Tender Committee finds that there is some deficiency in uploaded documents corresponding to the information furnished in Bid Submission Confirmation Sheet or in case corresponding document have not been uploaded by Bidders then the same will be specified online by Evaluator clearly indicating the omissions/shortcomings in the uploaded documents and allowing 7 days (7 x 24 hours) time for online re-submission by Bidders. Additionally, information shall also be sent by system generated email and SMS, but it will be the Bidder’s responsibility to check the updated status/information on GeM Portal regularly after opening of bid. No separate communication will be required in this regard. Non-receipt of e-mail and SMS will not be accepted as a reason of non-submission of documents within prescribed time. The Bidders will upload the scanned copy of all those specified documents in support of the information/declarations furnished by them in Bid Submission Confirmation Sheet within the specified period of 7 days. No further clarification shall be sought from Bidder.

The shortfall information/documents should be sought only in case of historical documents which pre-existed at the time of the tender opening and which have not undergone change since then. These should be called only on basis of the recommendations of the TC. So far as the submission of documents is concerned with regard to qualification criteria, after submission of the tender, only related shortfall documents should be asked for and considered. For example, if the bidder has submitted a work order document related to a particular contract without its completion/performance certificate, the certificate can be asked for and considered. However, no work order for new contract should be asked for so as to qualify the bidder.”

4. The petitioner’s technical bid was also disqualified on another ground, i.e. the Joint Venture Consortium Agreement submitted by the petitioner in relation to Request No. 3, was not in consonance with the format provided in Annexure-II of the ATC. As such, it was held by the State respondents that the petitioner did not fulfil the eligibility criteria as per the requirement of the Notice Inviting Tender dated 05.07.2024, (hereinafter refer