Judicial review in tender matters emphasizes adherence to mandatory conditions, where non-compliance invalidates bids irrespective of the bidder's past performance.

JUDGMENT

Date : 25-08-2022 The nature of certain conditions of an Notice Inviting Tender, whether directory or mandatory, has arisen for consideration in this present writ petition with the corollary question regarding the consequence of non-fulfillment of such conditions are the principal issues which have arisen for determination in the instant case.

2. The matter pertains to a Notice Inviting Tender (NIT) dated 21.12.2020 for four one of packages under SOPD-G for the year 2019-2020 for construction of roads in the BTC area. The petitioner claims to be qualified in all respects and had participated in the bidding process for construction of the road under Package no. SOPD-G-19-20- 47. The bid of the petitioner was found to be technically responsive. The petitioner could learn that the bid of the respondent no. 6, Shri Pabitra Boro was not complete as the same did not meet the mandatory requirement of Clause 4.3 (f) and 19.2 (a) (iii) of the tender conditions but in spite of the same, the bid of the respondent no. 6 was declared to be technically responsive. Consequently, the Chief Engineer, PWD (R) had issued an impugned letter of acceptance dated 26.02.2021 in favour of the respondent no. 6 though, the prize was the same so that of the petitioner.

3. When the matter was moved on 05.05.2021, this Court had directed maintenance of status quo till the returnable date. The said order of status quo was, however, extended from time to time.

4. I have heard Shri UK Nair, learned Senior Counsel assisted by Shri R. Singha, learned counsel for the petitioner. I have also heard Shri D. Saikia, learned Advocate General, Assam assisted by Shri R Dhar, learned State Counsel and Shri TJ Mahanta, learned Senior Counsel assisted by Ms. P Chakraborty, learned counsel for the respondent no. 6. The documents placed before this Court have also been duly perused. Shri Dhar, the learned Standing Counsel has also produced two numbers of files in original containing the records.

5. Since the issue begging an answer is with regard to the eligibility of the respondent no. 6 while submitting his bid, this Court would proceed to determine the said issue only. In other words, the present lis is nothing to do with the eligibility of the bid of the petitioner which is assumed to be valid in absence of any challenge.

6. Shri Nair, learned Senior Counsel has drawn the attention of this Court to the NIT dated 21.12.2020 and submits that out of the four works, the work against Sl. No. 4, as indicated above, concerns the present dispute. Referring to the bid document namely, Section 1: Instruction to Bidders, Clause 4.3 has been referred to. Under the said Clause, if an employer has not undertaken pre-qualification of the potential bidders, all bidders shall furnish the following information and documents. In the instant case, it is admitted that no exercise was undertaken for pre-qualification of potential bidders. Under Clause 4.3 (f), there is requirement to furnish reports on the financial standing of the bidder, such as, profit and loss statements and auditor's report for the last five years. Attention has also been drawn to Clause 4.5 (A) which requires the bidders to have, in the last five years, certain achievements and as per sub-clause (a), a bidder is required to achieve a minimum annual financial turnover of certain percentage of the estimated cost in any one year.

7. So far as "Preparation of Bids" is concerned, Shri Nair, the learned Senior Counsel ha