ORDER

Date : 10-09-2021 (N. Kotiswar Singh, J)

Heard Mr. U.K. Nair, learned Senior Counsel assisted by Mr. A.K. Sharma, learned counsel for the appellant. Also heard Mr. B. Gogoi, learned Standing Counsel, NHM for the respondent nos. 1 and 2 and Mr. P. Nayak, learned counsel for respondent no. 3.

2. Considering the nature of the case and as all the contesting parties are also present, we are of the view that the appeal can be disposed of at this stage in the following terms.

3. Without adverting to the detailed facts of the case, it will suffice to mention only a few relevant facts for the purpose of our consideration.

There was a tender process floated by the National Health Mission, Assam for up-gradation of existing Tangla CHC to SDCH in Udalguri District under NHM, Assam with an estimated cost of Rs.18,38,10,315.00 vide Invitation for E-Bid dated 24.05.2021. The appellant as well as the respondent No.3 participated in the said tender process with other bidders.

3.1. The case of the appellant herein is that as per the tender norms, the bidders had to specifically mention about the particulars of the sub-contractor, if the contractor is inclined to engage the service of a sub-contractor, which is permissible under the terms of the tender.

3.2. It is also the case of the appellant that the respondent no. 3 who was found to be the lowest bidder, however, did not mention any sub-contractor in the tender form thereby indicating clearly that the respondent no. 3 did not intend to hire any sub-contractor for executing any portion of the work.

3.3. Further, it is also the case of the appellant that even though the works also involves certain electrification works for which valid electrical license is required to be produced by the contractor as per clause 4.5.f of the bid document for executing the electrical works, the respondent no. 3 does not possess any such license. However, the aforesaid drawback has been sought to be made up by the respondent no. 3 by engaging the service of a sub- contractor namely, M/s Solitaire Enterprise, though the name of the said M/s Solitaire Enterprise as a sub-contractor was never mentioned by the respondent No.3 in the original bid documents submitted.

3.4. According to the learned Senior Counsel for the appellant, allowing a work to be executed by a sub-contractor in respect of building electrification works though the appointment of a sub-contractor was never mentioned in the original bid documents, amounts to violation of the terms of the bid and as such, even if the respondent no. 3 had submitted the documents of the sub- contractor for the purpose of execution of the electrification portion of the contract at a later stage, the respondent no. 3 remains non-responsive as he did not mention the name of the sub-contractor in his original bid documents at the time of submission of bid. It has been submitted that accordingly, the Ld. Single Judge ought to have not allowed the bid of the respondent no. 3 to be considered for the price bid but the Ld. Single Judge had allowed for issuance of the work order which, however, was made subject to the outcome of the writ petition.

3.5. Learned Senior Counsel for the appellant submits that this defect in respect of the bid of the respondent No.3 is a major and substantial one and such material defect should debar award of the contract to the respondent no. 3 and if the work is allowed to be awarded to the respondent no. 3, though it is subject to the outcome of the writ petition, it will not only be illegal but also, the petition will be virtually rendered infructuous as there will be nothing left to be done after the execution of the work by the respondent no. 3 who has emerged as the lowest bidder (L-1) after opening of the price bid, though he is not eligible.

4. We have gone through the impugned order which reads as follows :

“26.08.2021 Heard Mr. A.K. Sharma, the learned Counsel for the petitioner.

Mr. B. Gogoi, the learned Standing Counsel for the NHM produced