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IN THE HIGH COURT OF ORISSA AT CUTTACK
B.R.SARANGI, SANJAY KUMAR MISHRA, JJ.
M/s. Pradeep Kumar Mishra – Appellant
Versus
Vice-Chancellor, Veer Surendra Sai University of Technology, Burla & others – Respondent
W.P.(C) No. 25404 of 2021
Decided On : 14-07-2022
Tendering Authority - Imposition of Additional Condition - Clause-33 of the Tender Call Notice - M/s. Monarch Infrastructure (P) Ltd. v. Commissioner, Ulhasnagar Municipal Corporation, AIR 2000 SC 2272 - M/s. Michigan Rubber (India) Ltd. v. State of Karnataka and others, AIR 2012 SC 2915 - Yogesh Yadav v. Union of India and others, AIR 2013 SC 3372 - Secretary, A.P. Public Service Commission v. B. Swapna, 2005 (2) Supreme 615 - Mrs. Madhumita Das v. State of Orissa, 100 (2005) CLT 465
Fact of the Case:
The Petitioner participated in a tender process and was found qualified in the Technical Bid. However, before the Financial Bid was opened, the Tendering Authority imposed an additional condition, leading to the exclusion of some bidders, including the Petitioner, despite quoting lesser prices as per the original tender conditions.
Finding of the Court:
The Court found that the imposition of the additional condition after the Technical Bid was opened and before the Financial Bid was not sustainable in the eye of law. It held that changing the rules of the game after the tender process had begun was contrary to the settled position of law.
Issues: Whether the Tendering Authority can impose an additional condition after the Technical Bid was opened and before opening of Financial Bid.
Ratio Decidendi: Imposing additional conditions after the tender process has begun, leading to the exclusion of bidders who had already submitted their bids, is not sustainable in the eye of law. The Court cited various judgments to support the principle that the tendering process and selection criteria cannot be changed after the process has started.
Final Decision: The Tender Call Notice and the selection made pursuant thereto were quashed, and the Tendering Authority was directed to go for a fresh tender in accordance with the law.
JUDGMENT :
B.R. Sarangi, J.
The Petitioner, by means of this Writ Petition, seeks direction to the Opposite Party Nos. 1 to 4 to declare the Petitioner as L-1 bidder, in pursuance of the Tender Call Notice issued under Annexure-1, and to issue Work Order in its favour for one of the Clusters, by quashing the additional condition imposed under Annexure-5 dated 19.08.2021.
2. The factual matrix of the case, in a nutshell, is that the Opposite Party No.2-Veer Surendra Sai University of Technology, Burla, issued Tender Call Notice, vide Advertisement No.VSSUT/Registrar/DSW/ 2106 dated 03.06.2021, inviting Sealed Tenders, under two bid system, from intending reputed, registered, experienced and authorized Firms/Agencies for “Catering and Housekeeping at Veer Surendra Sai University and Technology (VSSUT) Hall of Residence, Burla”. The last date of receipt of such Tender was 03.08.2021, at 5.00 P.M. The Technical Bid was to be opened on 04.08.2021, at 3.00 P.M. The date of opening of financial bid for technically qualified bidder was to be notified later. It was notified that the lowest bidder would be the successful bidder or L1 bidder. Under Clause-2 of the Tender Call Notice eligibility criteria for participating in the tender was prescribed. It was provided under Clause 5(3) that the bidder should prepare Financial Bid in the price schedule as provide in the tender document. Then the Financial Bid should be kept in a separate sealed envelope, superscripted as Financial Bid for tender number (with the name and address of the bidder). The procedure for submission of bid was provided under Clause-6, whereas the procedure of opening of bid was provided under Clause 7, and procedure of opening of Financial Bid was prescribed under Clause-10. Annexure-A to the Tender Call Notice was contained the list of 12 Nos. of Halls of Residency in 5 Clusters at VSSUT, Burla, for providing catering service, whereas Part-B of the Financial Bid contained the rates for Boys Hostel and Girls Hostel. The said rates were inclusive of fuel, cost of procurement of rice, flour and all other provisions, vegetables, fruits, loading and unloading, transportation, storage labour, change for decent hygienic housekeeping, all Statutory Taxes including Service Tax, duties and levies etc., per student/ per square metre, and that the Institute would not pay any other charges for the catering and housekeeping services provided.
Pursuant to such Tender Call Notice, all total 17 bidders, including the Petitioner, were participated in the bid. As per the condition of the tender, the bidders were required to furnish the tender cost of Rs.5,000/-through demand draft along with Technical Bid document and Performance Security Declaration. Petitioner had submitted its demand draft and other documents for Technical Bid and had quoted the price for the Financial Bid for Boys Hostel and for Girls Hostel in two separate columns, as per the eligibility criteria in the tender. The Technical Bid was opened by Opposite Party No.2 on 04.08.2021, at 3.00 P.M., in presence of the Petitioner and other bidders. Opposite Party No.4, through its mail dated 16.08.2021, intimated that the Petitioner was found qualified in the Technical Bid and requested to attend the Financial Bid to be held on 19.08.2021, at 3 P.M.
On 19.08.2021, on the date of opening of Financial Bid, Opposite Party No.2 imposed the additional condition for bidders before opening of the price bid, which is extracted hereunder:
• The bidder quoting per day meal less than Rs.90/-of Boys will be cancelled considering as under quoted rate.
• The qualified bidder bidding lowest rate for boys will be given preference to choose the any cluster of his/her choice.
• Next lowest bidder for boys will be given the next cluster but as the rate of lowest bidder if he agrees. Otherwise will go to next lowest bidder and so on.
•
The principle established is that the tendering process and selection criteria cannot be changed after the process has started, and imposing additional conditions after the tender process has begun i....
Lowest bidder has no vested right to contract; authority may cancel tender for valid reasons like cartel without malice; tender conditions not judicially reviewable unless arbitrary.
The requirement of countersignature by the Executive Engineer, Irrigation and Waterways Department, in terms of Clause 7.4.1 (ii) of the tender conditions, cannot be regarded as an essential conditio....
Point of law: powers of judicial review are limited and while exercising such power the Court has to see whether the process adopted or decision made by the authority is malafideor is intended to fav....
Judicial review in tender matters is limited to assessing procedural fairness, not the merits of the tender conditions, which are determined by the tendering authority.
The court upheld the tendering authority's discretion in setting eligibility criteria, emphasizing limited judicial review focused on procedural fairness rather than the merits of the decision.
The court emphasized that strict compliance with tender conditions is essential and that arbitrary qualification despite disqualifications undermines the fairness required in the contracting process.
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