Research › Search › Judgment

Gauhati High Court · body

2002 DIGILAW 465 (GAU)

Assam Jatiya Vddyalaya v. State of Assam

2002-11-25

RANJAN GOGOI

body2002
RANJAN GOGOI, J.— Aggrieved by the selection of the respondent No.4 for the grant of a contract for designing, supplying, installation, testing and commissioning of Son-Et-Lumiere (Sound & Light) at Srimanta Sankardev Kalakhetra at Guwahati, the writ petitioner, a unsuccessful tenderer, has approached this Court challenging the decision making process leading to the award of the aforesaid contract. 2. The facts as unfolded by elaborate pleadings of the parties as well as the records in original as produced by the respondent No.2 may be briefly noted as hereunder:- A notice dated 15.9.2000 was published in the news paper on 27.9.2000 inviting sealed tenders for the grant of the contract as noted above. The last date of submission of tenders was 11.10.2000 which date was however subsequently extended to 24.10.2000 and thereafter to 27.10.2000. On 27.10.2000 the tenders received (three in number) were opened in the presence of the tenderers or their authorised representatives. A comparative chart was prepared in respect of the tenders received and placed before the tender committee constituted earlier by a Government notification to go into the matter. The tender committee in its meeting held on 5.1.2001 recorded that none of the tenderers who had submitted tenders pursuant to the NIT, fulfilled all the eligibility criteria as mentioned in the NIT and therefore two options were open to it firstly, to call for fresh bids and alternatively to consider the tenders as received. The tender committee further recorded the fact that for the reasons assigned, it was proceeding to evaluate the tender papers already received and that to examine the technical parameters submitted by the respective tenderers, a technical committee was constituted. The tender Committee further resolved that the script of the 'Sound & Light Project' was to be submitted to all the three tenderers so as to enable them to stage a presentation of the show as conceptualized by the respective tenderers. The script having been made available to all the tenderers, the petitioner and M/s Buildrite Construction submitted their presentation on 23.1.2001 whereas the respondent No.4 submitted its presentation on 24.1.2001. All the aforesaid presentations were made before the technical committee. The script having been made available to all the tenderers, the petitioner and M/s Buildrite Construction submitted their presentation on 23.1.2001 whereas the respondent No.4 submitted its presentation on 24.1.2001. All the aforesaid presentations were made before the technical committee. What transpired in the course of the aforesaid presentations has not been recorded in form of minutes but it is evident from the affidavit of the respondent No.2 that all the tenderers were advised to make necessary modifications in certain technical aspects of their offers which were considered necessary by the experts of the technical committee. All the three tenderers were also informed that they need not arrange 'Sound Track Development' which would be done separately. The tenderers were also asked to include certain technical features which were absent in the tenders submitted. Accordingly, revised proposals were submitted by the tenderers alongwith the revised cost of the project. While the respondent No.4 submitted the aforesaid revised proposal on 27.1.2001, the writ petitioner and the other tenderer submitted its revised proposal on 29.1.2001. On 2.2.2001, a meeting of the tender Committee was held and it appears from the recorded minutes of the said meeting that the respondent No.4 was recommended by the technical committee. The aforesaid recommendations appear to have been made primarily on the ground that the presentation made by the respondent No.4 on 24.1.2001 was technically the best. On 6.2.2001, the reasons in support of the decision of the tender Committee for recommending the respondent No.4 appear to have been recorded. The tender committee while recording its reasons, had also recommended that the respondent No.2 should carry out further negotiation with the respondent No.4 for deciding the final cost of the project. Thereafter, it appears that on 15.3.2001 the Managing Director of the respondent No.2 issued a letter to the respondent No.4 to the effect that the rate quoted by it is high and that they should corne for necessary discussion on 21.3.2001. Thereafter the respondent No.4 addressed a letter dated 22.3.2001 stating that no reduction of price is feasible but as a special gesture they are willing to offer a reduction of Rs. 2.00 Lakhs. Thereafter the meeting of the Technical Committee was held on 26.3.2001 wherein it was decided that respondent No.4 should be asked to submit technical details and specifications of each item and the matter be reconsidered on 30.3.2001. 2.00 Lakhs. Thereafter the meeting of the Technical Committee was held on 26.3.2001 wherein it was decided that respondent No.4 should be asked to submit technical details and specifications of each item and the matter be reconsidered on 30.3.2001. The respondent No.4 accordingly submitted the details/specifications as asked for and another meeting of the technical committee was held on 30.3.2001 wherein a decision was taken to award the contract to respondent No.4 within the amount ofRs.65.00 Lakhs. The respondent No.4 was required to communicate its acceptance of the aforesaid offer within 7.4.2001. On the same day, i.e. 30.3.2001, the Managing Director of the respondent No.2 wrote a letter to the respondent No.4 asking the said respondent to intimate its willingness to execute the work within the estimated amount of Rs.65.00 Lakhs and to submit detail design and specification, if so agreeable. On 5.4.2001, the respondent No.4 submitted a revised price schedule giving the bill of quantities, unit price and total price for supply and installation of each item. The total revised price worked out by the respondent No.4 stood at Rs.66,28,397.00. As would be evident from the affidavit filed by the respondent No.4, after the respondent No.4 was asked to indicate its willingness to execute the work within the amount of Rs.65.00 Lakhs, the site was visited and a better, economical and technically viable system of sound and dimmer system was devised which reduced the quantity of luminaries, Lamps and cables without however comprising with the quality, technicality and specification of the tender committee and the project and, as such, the price quoted in the tender could be reduced to a sum of Rs.66,22,397.00. The facts as unfolded would further go to show that the revision in the technical aspects of the offer on account of which reduction of price as noted above was made possible did not go back to the technical committee for its consideration before the work order dated 19.4.2001 was issued in favour of the respondent No.4. 3. Before adverting to the submissions and counter submissions of the rival parties it may be appropriate to note the reasons for the impugned decision as recorded by the technical committee on 6.2.2001 as under: "Recommendation of the Technical Committee for the Project SEL show Srimanta Sankardev Kalakhetra, Guwahati. 3. Before adverting to the submissions and counter submissions of the rival parties it may be appropriate to note the reasons for the impugned decision as recorded by the technical committee on 6.2.2001 as under: "Recommendation of the Technical Committee for the Project SEL show Srimanta Sankardev Kalakhetra, Guwahati. After detailed examination of the earlier proposals, revised proposals and presentations given by three tenderers, namely Assam Jatiya Vidyalaya, Buildrite Constructions and Bajaj Electricals Ltd. for the Sound & Light Project at Srimanta Sankardev Kalakhetra, Guwahati, the technical committee hereby recommends the Bajaj Electricals Ltd. for the project due to following reasons: (1) It is apparent that the technical capability of the Bajaj Electricals Ltd. is of very high order. The group is led by Sri S. Roychoudhury who is acknowledged to be internationally renowned technician in the related field. Moreover, he has been associated with implementation of very prestigious projects including Sound & Light project at Lalkilla, Gulkunda,Fort at Hyderabad, Cellular Jail in Andaman & Nicobar etc. On the other hand, Buildrite Construction Ltd. have specialized in stage settings and lighting only. They are more specialized in civil construction. Assam Jatiya Vidyalaya does not have any such experience excepting a very minor project at Kanamanexa Island in the Brahmaputra in 1995 which is no longer operational. (2) Bajaj Electricals being a very stable manufacturer of electrical goods, their products will be of reputed quality. The other two companies do not have manufacturing or fabricating facilities of their own. (3) The presentation given by the Bajaj Electricals was considered to be the best. It was observed by the technical committee members that they will be able to effectively handle the script and the theme. (4) It was observed by the technical committee that the Bajaj's offer will be best value for money. Since cost is also the important factor, the Technical Committee recommended ATDC to further negotiate with the Bajaj Electricals for deciding the final cost. It was also stipulated that the work for the project will be done in-house by the Srimanta Sankardev Kalakhetra under the guidance of Dr. Bhabendranath Saikia and others. Separate budget for the same is to be earmarked for this." 4. Mr. It was also stipulated that the work for the project will be done in-house by the Srimanta Sankardev Kalakhetra under the guidance of Dr. Bhabendranath Saikia and others. Separate budget for the same is to be earmarked for this." 4. Mr. A.C. Borbora, learned counsel, appearing for the writ petitioner unfolded his argument by contending that the technical parameters of the project were set and approved by the competent authority of the Central Go eminent on the basis of which the estimated cost of the project was sanctioned. "Show Mastering" was an integral part and, in fact, a basic feature of the project as approved by the Central Government and, therefore, it is not within the competence of the technical committee to drop the aforesaid item from the project. The role of the technical committee, according to the learned counsel, is to ensure that the set and approved technical parameters of the project were complied with by the tenderers and instead what has been done is that essential technical features of the project as approved were deleted. The decision making process is, therefore, contended, to have been vitiated on the aforesaid score. Coming to the reasons recorded by the technical committee in support of its recommendation in favour of the respondent No.4, it is argued by Mr. Borbora, that. Shri S. Roychoudhury who has been found to be an expert in execution of similar projects in the past was an employee of Philips, the sponsor of the writ petitioner. The projects mentioned by the technical committee were really executed by Phillips and to substantiate the said contention, the learned counsel has referred to the elaborate pleadings contained in the additional affidavit filed by the writ petitioner. The learned counsel has, therefore, argued that availability of the technical expertise of Shri S. Roychoudhury to the respondent No.4 for execution of the instant project could not have been a factor to recommend the said respondent and, in any case as Shri S. Roychoudhury had executed the earlier projects as an employee of Phillips, the expertise available to Phillips who had sponsored the writ petitioner could not have been overlooked while arriving at the final decision to grant the contract in favour of the respondent No.4. The learned counsel further contends that the conclusion of the technical committee that the project executed by the writ petitioner in the year, 1995, was a minor project and that it is no longer operational is completely incorrect; it was a successful venture which had to be abandoned because of certain operational factors not connected with the technical feasibility of the project. In so far as the second ground of argument in support of the decision of the technical committee, as recorded on 6.2.2001, is concerned, the arguments of the writ petitioner is that in the NIT there is no mention and/or indication that preference would be given to manufacturer of electrical goods. In any case, it is argued that Phillips is also a known manufacturer of quality electrical goods and, therefore, if preferential treatment was required to be given, the technical committee could not have overlooked the fact that the writ petitioner had the support of Phillips. Mr. A.C. Borbora, learned counsel for the petitioner has further argued that in the presentation given by the tenderers before the technical committee on 23.1.2001 and 24.1.2001, all the tenderers were asked to submit their revised proposals which were done between 27.1.2001 and 29.1.2001. Admittedly, no presentation was held on the basis of the revised proposals. As the presentations were made on the basis of pre-revised proposals and parameters and the technical committee felt that certain revisions are necessary, fresh presentations on the basis of the revised parameters ought to have been called for and the same not having been done the conclusion that the technical presentation made by the respondent No.4 was the best is a conclusion reached on non-existent facts. The decision making process is therefore contended to be vitiated. Mr. A.C. Borbora, learned counsel for the petitioner, further argued that the facts of the instant case amply demonstrate that negotiation with the respondent No.4 to the exclusion of the other tenderers was carried out before the final decision to award the contract was reached. The respondent No.4 was allowed to further change the technical parameters of its offer thereby enabling it to bring down its price. Such revisions in the technical parameters, which were eventually accepted, did not have the approval of the technical committee as the same were not put up before the said committee, it is argued. Lastly, it is argued by Mr. Such revisions in the technical parameters, which were eventually accepted, did not have the approval of the technical committee as the same were not put up before the said committee, it is argued. Lastly, it is argued by Mr. A.C. Borbora, learned counsel for the petitioner, that in the affidavit filed by the respondent No.2 ithasbeen contended that the price of Rs.48.00 Lakhs (later enhanced to Rs.50.00 Lakhs) quoted by the writ petitioner was too low thereby not meriting any serious consideration. The learned counsel argued that in the NIT there was no minimum fixed price and, in any case, price was a factor to be determined by the prospective tenderers. The stand of the authority that the bid offered by the writ petitioner is too low is therefore not supported by any valid reason. In support of his contentions' advanced, Mr. A.C. Borbora, learned counsel, relies on two decisions of the Apex Court in the case of Dutta Associates Pvt. Ltd. Vs. Indo Mercantile Pvt. Ltd. & Others reported in 1997(1) SCC 53 :1997 (2) GLT (SC) 1 and in the case of Tata Cellular Vs. Union of India, which was reported in 1994(6) SCC 651 . 5. Mr. S.S. Goswami, learned counsel for the respondent No.2 in his arguments advanced has contended that it was within the competence of the technical committee to require such modifications in the technical parameters of the project and consequently in the parameters submitted by the tenderers, as the interest of the project may have demanded. The deletion of the item "Show Mastering" and the inclusion of certain other features was considered necessary in the interest of the project and the said decision having been taken by the technical experts, this Court should refrain from entering into the said dispute in a proceeding under Article 226 of the Constitution. The learned counsel has further submitted that the estimated cost of the project (Rs.80.00 Lakhs) was worked out by taking into account similar projects and the rate quoted by the writ petitioner being too low, the same cannot be considered to be a viable one. The learned counsel has further submitted that the estimated cost of the project (Rs.80.00 Lakhs) was worked out by taking into account similar projects and the rate quoted by the writ petitioner being too low, the same cannot be considered to be a viable one. It is also argued by the learned counsel for the respondents that the claim of experience of execution of similar projects by the writ petitioner was not found tenable as the project said to have been executed by the writ petitioner was in reality executed by some other agency and, in any case, the same was not operational at the relevant time to enable the technical committee to give any credit to the writ petitioner on this score. 6. Mr. R. K. Bora, learned G. A. Assam has adopted the arguments advanced on behalf of the respondent No.2 and has relied on the averments made in the State's Affidavit in support of the decision impugned in the present case. 7. Mr. A.K. Bhattacharjee, learned Senior counsel, appearing on behalf of the respondent No.4 has argued that this Court should be slow in interfering with the decision of the experts of the technical committee taken on technical reasons unless there are errors apparent on the face of the records. According to the learned Senior Counsel, no fault can be found with any of the reasons cited by the technical committee in support of its decision to recommend the respondent No.4 Shri S. Roychoudhury was found to have been associated withseyeral other similar projects which had been successfully commissioned and, therefore, the availability of the services of the said person at the relevant point of time was a factor that could legitimately be taken into consideration. The project claimed to have been executed by the writ petitioner in the year, 1995, has ceased to be functional and that is a factor which was rightly taken into consideration by the technical committee in considering the suitability of the parties. The respondent No.4 is a known manufacturer of electrical goods and the project envisaged the use of electrical goods and equipments on a large scale. The writ petitioner is a school, the learned Senior counsel contends, and the support of Phillips as claimed by the writ petitioner is uncertain and unknown in quantum and extent. There is no collaboration between the writ petitioner and Phillips. The writ petitioner is a school, the learned Senior counsel contends, and the support of Phillips as claimed by the writ petitioner is uncertain and unknown in quantum and extent. There is no collaboration between the writ petitioner and Phillips. The learned Senior counsel has further argued that the technical presentations made by the tenderers and the evaluation made are essentially conclusions reached by the experts on technical grounds and no interference with the same would be warranted in the facts of the present case. Mr. Bhattacharjee has further argued that the negotiation carried out with the respondent No.4 with a view to bring down the price was clearly a post-settlement negotiation which is not only permissible in law but also is in public interest. Mr. Bhattacharjee, learned Senior counsel, by relying on the two decisions of the Apex Court in the case of Bakshi Ram and Others Vs. BrijLal, AIR 1995 SC 395 , and Air India Ltd. Vs. Cochin International Airport Ltd. (2000) 2 SCC 617 , has contended that it is obligatory on the part of the Court to balance the individual rights and interests of the tenderers with the public interest in arriving at the final decision to interfere or not to interfere with the award of a contract. Public interests that this Court has to weigh are at times highly conflicting and competing and, therefore, unless there are strong and compelling grounds, no interference should be made with the decision of the authority. Such interference leads to delay in execution and consequently price escalation, which is against public interest. Relying on the decision of the Apex Court in the case of Air India Ltd. Vs. Cochin International Airport Ltd. (2000) 2 SCC 617 , the learned counsel has submitted even if some infirmities are found in the decision making process, the same would not constitute a sufficient ground to interfere with the award of the contract unless on balancing the conflicting public interests, the Court is satisfied that interference is called for. The learned Senior counsel further submitted that materials on record do not indicate any strong and compelling reason to even remotely consider the writ petitioner as suitable for execution of the project in preference to the respondent No.4. Interference with the award of the contract at the instance of the writ petitioner, therefore, would not be called for. 8. The learned Senior counsel further submitted that materials on record do not indicate any strong and compelling reason to even remotely consider the writ petitioner as suitable for execution of the project in preference to the respondent No.4. Interference with the award of the contract at the instance of the writ petitioner, therefore, would not be called for. 8. The arguments and counter arguments advanced on behalf of the rival parties have been duly considered. The respective pleadings of the parties as well as records in original produced have been duly perused. As a technical committee had been constituted to go into the technical parameters of the offers of the respective tenderers in the light of the technical features of the project, ordinarily this Court would leave the decision of the technical committee undisturbed unless there are patent errors and perversities apparent on the face of the record. The writ court always considers it inexpedient and inappropriate to sit in judgment over the views of the experts. If the experts have felt the necessity of certain modifications in the technical parameters of the project, in the light of which, the tenderers were asked to submit their revised proposals by deleting certain items and corresponding additions of certain others, this Court would be inclined to hold that unless it is clearly demonstrated that such modifications are not in the interest of the project, the views of the experts should be allowed to prevail. In the instant case there is admittedly no material to enable the Court to take a view that the changes effected by the technical committee were not in the interest of the project. In so far as conclusion of the technical committee that the respondent No.4 was technically better equipped to execute the project because it had the services of an expert, i.e. Shri S. Roychoudhury is concerned, the limited scope of scrutiny by the writ Court would be to assess as to whether such a conclusion has been reached reasonably., fairly and on consideration of relevant factors. In the instant case, the technical committee thought it proper to hold that as the respondent No.4 had the services of Shri S. Roychoudhury, the fact that Sri Roy Choudhury was associated with the successful execution of similar projects should be taken into account. The consideration of the aforesaid aspect of the matter cannot be termed as unreasonable. In the instant case, the technical committee thought it proper to hold that as the respondent No.4 had the services of Shri S. Roychoudhury, the fact that Sri Roy Choudhury was associated with the successful execution of similar projects should be taken into account. The consideration of the aforesaid aspect of the matter cannot be termed as unreasonable. That Shri S. Roychoudhury was earlier employed by Phillips and it is Phillips who may have executed the other projects is altogether a different matter. What the technical Committee was required to consider is the availability of the services of Shri S. Roychoudhury to the respondent No.4 for execution of the instant project. Admittedly such services were available to the respondent No.4 on the relevant date. The weightage, if any, that should be given to the writ petitioner for execution of another project as claimed by it was duly considered by the technical committee and the technical committee took the view that the said project was a small one and, in any case, it was not operational on the relevant date. That the earlier project commissioned by the writ petitioner was not functional and operational is not denied. What weightage should be given on the basis of the aforesaid facts, to the respective tenders, is really a matter for the technical committee to decide and the decision of the technical committee having been taken upon consideration of all relevant facts I do not find any sufficient ground to interfere with the same. Coming to the third argument advanced on behalf of the writ petitioner that in the Nit there is no mention that any preferential treatment would be given to a manufacturer of electrical goods, this Court finds that the project in question envisaged use of a large number of electrical goods, equipments and appliances. Some weightage to a tenderer on account of such a tenderer being a manufacturer of electrical goods cannot therefore be said to be an irrelevant consideration. As for the argument that if such preferential treatment was required to be given, the same weightage also should have been given to the writ petitioner because it was sponsored by Phillips which is also a known manufacturer of quality electrical goods, this Court has already recorded that the claim of the writ petitioner to be supported by Phillips is not substantiated by necessary details. The extent and the manner of such support to the writ petitioner is not indicated. In such a situation preference of a known manufacturer, i.e. respondent No.4 in the considered view of the Court cannot be said to be on irrelevant facts or considerations. 9. Having decided the aforesaid issues against the writ petitioner, this Court must now come to two other issues, which have heavily weighed with the Court. The admitted and undisputed facts of the case would go to show that the technical presentations were made by the tenderers on 23.1.2001 and24.1.2001 and on the basis of the technical presentations made, the tenderers were asked to submit revised technical parameters by deleting certain items and by adding others. No fresh presentations on the basis of the revised technical parameters were held. Yet, the technical presentations made by the respondent No.4 on 24.1.2001 were found to be the best. When the technical presentations were made on the basis of the pre-revised parameters and certain revision in such parameters were considered necessary and were accordingly effected, it is difficult to comprehend as to how the technical presentations made on the basis of pre-revised parameters could have been considered to determine as to which of the tenderers had made the best presentation. It is virtually a decision arrived at on non-existent facts and the decision making process appears to have faltered at this stage. This court has also noticed that after the technical committee recommended the respondent No.4, no formal acceptance of the said recommendation was made by the tender committee. Instead, the respondent No.4 was asked reduced its price, submit technical specifications and details, to visit the site, discuss the matter further and pursuant to all such facts and events, the respondent No.4 had submitted its revised offer of Rs.66,22,397.00 by devising what has been contended to be "a better, economic and technically more viable system of sound and dimmer which reduced the quantities of luminaries, lamps and cables without however compromising quality". It is therefore virtually the admitted case of the respondent No.4 that technical parameters contained in its earlier offer were further revised to bring down the price. The records of the case does not show that the aforesaid revisions in the technical parameters were referred to the technical committee for evaluation. Instead the same were approved by grant of the work order on 19.4.2001. The records of the case does not show that the aforesaid revisions in the technical parameters were referred to the technical committee for evaluation. Instead the same were approved by grant of the work order on 19.4.2001. Thus the decision making process appears to have again faltered. 10. It is true that the writ Court while arriving at its -final decision to interfere or not to interfere with the award of a contract has to take into account several conflicting and competing public interests that maybe involved. Interference is not to be made lightly and keeping in mind that the primary grievance, expressed in a challenge to the award of a contract, is inter parte i.e. between the tenderers, the interference of the Writ Court should not be made merely because a legal point has been established. That is precisely what the Apex Court has laid down in the case of Air India Ltd. Vs. Cochin International Airport Ltd. (2000) 2 SCC 617 . There can be no manner of doubt that public interest requires that execution of a contract should not to be withheld so as to avoid price escalation and delays in the benefits flowing to the public upon successful commissioning of the project. But public interest also requires and demands that the laws enacted by the Legislature and the norms set by judicial pronouncements are scrupulously followed by public authorities. Public interest would also require the Court to consider as to whether the grant of a contract has been rightly made, not from the perspective of individual rights but to determine as to whether the decision leaves no room for doubt that the project can be successfully commissioned. Having regard to the aforesaid facts and also keeping in mind that the present contract lies in what can be termed as non performing area, I am inclined to interfere with the award of the contract made by order dated 19.4.2001. 11. In view of the above conclusion arrived at by this Court, the matter will now go back for a denovo consideration from the stage of presentation by the tenderers before the technical committee on the basis of the revised parameters. The authority would proceed with the matter from that stage and pass necessary orders. 11. In view of the above conclusion arrived at by this Court, the matter will now go back for a denovo consideration from the stage of presentation by the tenderers before the technical committee on the basis of the revised parameters. The authority would proceed with the matter from that stage and pass necessary orders. Naturally, as the grant of the contract is now required to be processed under orders of this court, the question of lapse/withdrawal of the fund sanctioned for the project will not arise. 12. With the aforesaid observations the writ petition stands allowed to the extent indicated above.