A bidder must be a legal entity in existence for over three years to qualify for tender participation; failure to meet this criterion renders the bid non-responsive.

JUDGMENT :

MICHAEL ZOTHANKHUMA, J.

1. Heard Mr. D. Deka, learned counsel for the petitioner. Also heard Mr. P. Nayak, learned counsel for the Guwahati Municipal Corporation (‘GMC’ in short) and Mr. K. Bhattacharjee, learned counsel for the respondent No. 3.

2. The petitioner and the respondent No. 3 amongst others had participated in a Notice Inviting Tender dated 12.07.2024 (hereinafter referred to as the ‘NIT’) in respect to Package No. 13, for carrying out the work of “Door to Door Collection and Transportation of Municipal Waste in Various Wards of Guwahati Municipal Corporation).” The petitioner and the respondent No. 3 amongst others had submitted their bids against Package No. 13 pursuant to the NIT. In terms of Clause 4.2.1(b) of the NIT, the bidder was to be a legal entity in existence for more than 3 years and should have liquid assets and/or credit facilities of not less than Rs.50 lakhs. The petitioner’s grievance is that despite the bid of the respondent No. 3 being Rs.9.10/- per household, which is 81% below the base/estimated price of the contract work, the respondent Nos. 1 & 2 have not taken the Additional Performance Security from the respondent No. 3, in terms of the Notification No. 530624/1 dated 30.07.2024 issued by the Commissioner & Secretary to the Govt. of Assam, Finance Department.

3. The petitioner’s counsel submits that in terms of the above Notification dated 30.07.2024, the Additional Performance Security to be furnished by the respondent No. 3, over and above the Performance Security that is to be normally furnished, would amount to approximately Rs.1.5 crores. The petitioner’s further grievance and the more important issue is the fact that the respondent No. 3 had been in existence as a legal entity for less than 3 years, at the time of submission of it’s bid in terms of the NIT and as such, was ineligible to participate in the NIT.

4. The petitioner’s counsel submits that the respondent No. 3 was registered as a society under the Registration of Societies Act, 1860, as “Orion Society” only on 06.10.2021. The NIT was issued on 12.07.2024 and the last date of submission of bids was 30.08.2024. As such, on the last date of submission of the bids in terms of the NIT, the respondent No. 3 had been in existence as a legal entity for only 2 years 10 months. The petitioner’s counsel submits that when the essential condition of a tender has been violated, the bid of the respondent No. 3 should have been declared as non-responsive. However, the bid has been declared to be responsive and the respondent No. 3 has been awarded the contract.

5. The petitioner’s counsel submits that in terms of the Societies Registration (Assam Amendment) Act, 2019, which came into force on 04.09.2019, the renewal of a registration of a society should be made within the validity period of the registration period of the Society or within 1 month after the expiration of the validity period of registration. Section 3D provides that when a society which fails to get it’s certificate of registration renewed in accordance with Section 3C, it’s registration lapses. The registered society will then cease to be a registered society w.e.f. the actual date of expiration of it’s original registration or renewal thereof and it’s name and other particulars shall be struck off from the register in which it was earlier registered or renewed. It also provides that no registration shall be struck off before the expiry of 12 months from the date of expiry of the validity of the previous registration, whether original or renewed.

6. The petitioner’s counsel submits that even if “Orion Society” had been registered earlier under the Societies Registration Act, the validity period of the same having expired on 30.12.2017 and as Orion Society had been subsequently registered afresh as a Society, by way of a new registration number on 06-10-2021, the existence of the respondent No. 3 as a legal entity would have to be counted from the date it started to ex