ORDER

21.10.2022 Heard Mr. NNB Choudhury, learned counsel for the petitioner. Also heard Mr.

S Kataki, learned standing counsel for the respondents in the Assam Electricity Grid Corporation Limited (for short, the AEGCL).

2. The respondents No.6 and 7 are incidental beneficiaries of the purported action that had been taken by the respondent pursuant to the tender process against the petitioner. As they are incidental beneficiaries, we are of the view that they are not necessary parties in the present proceeding.

3. The petitioner participated in a tender process pursuant to a notice inviting tender dated 29.07.2022. The NIT at Clause 3 in the first page provides that the intending tenderers may visit the site at 12.00 hrs of 08.08.2022. Clause 1.1.2.4 provided that when the bidder is a joint venture of two or more firms as partners, all the partners shall be jointly and severally liable. It further provides that copy of the registered joint venture agreement, executed on a non-judicial stamp paper shall be submitted along with the bid in the event bidder is a joint venture.

4. The tendered bid of the petitioner stood rejected as per the decision of the tender evaluation committee dated 26.09.2022. One of the reasons, for rejection of the tendered bid of the petitioner as per the tender evaluation committee was that the petitioner although a joint venture did not submit the board resolution of M/s. Parth Electricals & Engineering Pvt. Ltd. and the petitioner M/s. Megha Electrical. Another reason for the rejection is that the site visit certificate was not submitted by the bidder. Two further reasons for rejection were that the performance certificate of 33kV XLPE Cable and the performance certificate of Control and Power cable were not submitted.

5. With regard to the first reason that no board resolution of the joint venture was submitted, Mr. NNB Choudhury, learned counsel for the petitioner refers to the internal page 28 of the bid document which comprises of the Section 2 bid forms provided along with the tender documents. Mr. NNB Choudhury, learned counsel for the petitioner also refers to clause 1.1.2.4 of the instruction to bidders which provides that when the bidder is a joint venture, there is a requirement to provide a copy of the registered joint venture agreement, executed on a non-judicial stamp paper and that there is no further requirement to provide any board resolution. As regards the second reason for rejection that the site visit certificate was not submitted, Mr. NNB Choudhury, learned counsel for the petitioner refers to the corrigendum for the NIT made on 06.09.2022 wherein in Clause 2 thereof there is a requirement that the bidders are requested to submit site visit certificate duly issued and signed by the Managing Director of the AEGCL and that the certificate must be uploaded in the e-tender portal along with the tender document.

6. According to Mr. NNB Choudhury, learned counsel for the petitioner after the corrigendum was issued, the petitioner or their representative visited the site and thereafter by their application dated 08.09.2022 requested for the issuance of the site visit certificate, but the same has not been given. Accordingly, it is the submission of the learned counsel that the aforesaid two reasons for the technical rejection of the tendered bid would be unsustainable.

7. Mr. S Kataki, learned standing counsel for the AEGCL on the other hand refers to the first page of the NIT dated 29.07.2022 wherein in Clause 3 it has been specifically stated that the date and time of site visit is 12.00 hrs of 08.08.2022. According to Mr. Kataki, at the stated time and date, the representatives of the respondent AEGCL were present at the site, but neither the petitioner nor their representatives have visited the site at that relevant point of time and, therefore, the respondents in the AEGCL are unable to issue the site visit certificate.

8. As regards the first reason for rejection of the tendered bid of