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Gauhati High Court · body

2007 DIGILAW 193 (GAU)

Priti International v. Union of India

2007-03-07

BIPLAB KUMAR SHARMA

body2007
JUDGMENT B.K. Sharma, J. 1. Alleging submission of invalid tenders by the respondent Nos. 7 and 8 in respect of a tender notice, the petitioner has filed this writ petition challenging the action of the authority in entertaining their bids. 2. The petitioner is a proprietorial firm. In response to the Annexure-1 Notice Inviting Tender (NIT), the petitioner responded to the same by submitting its bids. The work involved is collection and compilation of 7 days (24 hours daily) traffic census data in two phases - (i) in June/July 2006 and (ii) in January/February 2007 on designation count stations on National Highways (non-NHDP Sections) in the North eastern States. For a ready reference the NIT is reproduced below: NOTICE INVITING BIDS Sealed bids are invited from individuals, group of individuals/NGOs/education institutions/Universities/Engineering & other colleges/other professional bodies, for collection and compilation of 7 days (24 hours) traffic census data in two phases (i) June/July of 2006 and (ii) in January/February of 2007 on designated count stations on National Highways (non-NHDP sections) in the North Eastern States. The designated count stations where traffic census is proposed to be carried out are grouped into three packages as detailed below. 2. Interested parties may submit their sealed bids by 20.6.2006 (1730 hrs), as per the following indicating BOQ inclusive of all taxes payable by the bidder and alongwith their proposed list of enumerators and supervisors as well as their qualifications, to The Regional Officer, Ministry of Shipping, Road Transport & Highways, Chandmari, Rajgarh Road, Guwahati-781003, Bids can be submitted separately for any number of count stations in a Package and for any No. of packages, with separate sets of enumerators & supervisors for each count stations. Application for rebate on more than one count station within a package on simultaneously award is also acceptable. The bidder shall clearly indicate on the envelope, their address for correspondences and the details of locations of count stations applied for. Bids shall be valid for minimum 120 days. Successful bidder shall be required to deposit 2% performance security at the time of award of work. 3. The details instruction to bidders, sample tender document etc. may be seen at the office of the Regional Officer, Ministry of Shipping, Road Transport &. Highways, Chandmari, Rajgarh Road, Guwahati, if necessary. Regional Officer M/o Shipping Road Transport and Highways Deptt. of Road Transport and Highways Rajgarh Road, Guwahati. 3. 3. The details instruction to bidders, sample tender document etc. may be seen at the office of the Regional Officer, Ministry of Shipping, Road Transport &. Highways, Chandmari, Rajgarh Road, Guwahati, if necessary. Regional Officer M/o Shipping Road Transport and Highways Deptt. of Road Transport and Highways Rajgarh Road, Guwahati. 3. According to the petitioner, although as per clause 3 of the NIT, the detail instruction to bidders, sample tender documents, etc., could be seen at the office of the Regional Office, Ministry of Shipping, Road Transport & Highways, Chandmari, Rajgarh Road, Guwahati, but on being approached no such information was furnished. The petitioner submitted its sealed bids for each of the packages and along with the same submitted its proposed list of enumerators and supervisors indicating their qualifications. The sealed bid was submitted on 20.6.2006. For each package the petitioner submitted separate bid contained in sealed envelopes and the envelopes were sealed by utilizing lac/wax. As regards the submission of sealed tender as per the NIT, it is the contention of the petitioner that same necessarily requires sealing of the envelopes containing the tender bids with lac/wax for the purpose of fastening. Referring to the purported procedure of sealing of envelopes containing bids being followed in the Central Public Works Department, the petitioner has contended that submission of sealed tender necessarily involves using of stamp. 4. Alongwith the petitioner three others also submitted bids. They are Sri Coming Star Barch, Sri Ashok Marak and Sri Carmel R. Marak (respondent No. 8). While Sri Coming Star Barch submitted only one envelope containing the bid, other two submitted three envelops containing the bids like that of the petitioner. It is stated that on the date of submission of the bids, i.e., 20.6.2006, the authority informed the bidders including the petitioner that the bids would be opened on 23.6.2006 at 2.00 PM. However, on 23.6.2006, the petitioner and others were informed by Annexure-II letter dated 23.6.2006 that the last date of receiving bids has been extended up to 17.30 Hours of 7.7.2006 and that the bids would be opened on 10.7.2006 at 16.30 Hours. It was also intimated that the bids already submitted might be collected from the office in case any review of the same was required and the same might be submitted by the revised dates. 5. It was also intimated that the bids already submitted might be collected from the office in case any review of the same was required and the same might be submitted by the revised dates. 5. On receipt of the said letter dated 23.6.2006, the petitioner sought for clarification and information as to why the last date of receiving bids had been extended and that too after expiry of last date of submission of bids, i.e., 20.6.2006: However, no information and/or reasons were assigned. It is the case of the petitioner that the last date of submission of bids was extended for extraneous consideration and not for any valid reason. After extension of the last date of submission of bids, two new parties submitted their bids and they are - Puja Communication and Sri Binod Kumar Sablawat (respondent No. 7). Although, as per the aforesaid letter dated 23.6.2006, with the extended date of submission of bids, the bids were to be opened on 10.7.2006 at 16.30 Hours, the bids were opened on 12.7.2006 in presence of the representatives of the parties. The petitioner's representative was also present. The representative of the petitioner could notice that the bids of the respondent Nos. 7 and 8 were not in sealed cover as required. The envelopes were fastened by cello tape. On the other hand, the envelope containing the bids of Sri Coming Star Barch was fastened with glue. All others, including the petitioner submitted their bids in closed envelopes appropriately sealed with lac/wax. 6. Noticing the above anomaly in submission of bids by the aforesaid bidders, the representative of the petitioner raised objection and prayed for rejection of the bids. Being confronted with such objection, the tender committee, which had opened the bids asked the representatives of the parties to leave the room enabling the tender committee to arrive at a decision on the objections raised. After some time, the representatives of the parties were called inside the room and they were informed that except the bids submitted by Sri Coming Star Barch, who submitted bid in an envelop fastened by glue, the bids offered by the respondent Nos. 7 and 8 contained in the envelops fastened with the cello tape were acceptable. After the decision, the tender committee proceeded with the task of opening the bids. 7. 7 and 8 contained in the envelops fastened with the cello tape were acceptable. After the decision, the tender committee proceeded with the task of opening the bids. 7. Upon opening of the bids, the petitioner could notice that the respondent No. 7 did not submit, alongwith his bid, the proposed list of enumerators and supervisors alongwith their qualifications, although the same was an essential condition for acceptance of bids. It is the further case of the petitioner that the envelope containing the bids of the respondent No. 7 also did not contain the details of count stations applied for. According to the petitioner, such anomalies were brought to the notice of the tender committee praying for rejection of the said bids. The petitioner in fact, submitted a written objection on 12.7.2006 stating that the bids submitted by the respondent Nos. 7 and 8 were not in accordance with the terms and conditions of the Nit making the same liable to be rejected out rightly. 8. In response to the objection submitted by the petitioner, the authority of the official respondents intimated the petitioner that the cover containing the bid's of respondent Nos. 7 and 8 having been sealed by cello tape, the contents within the covers could not have been tampered with without destroying the covers and, thus, the said bids had been accepted by the tender committee and accordingly were opened. It is the case of the petitioner that the grounds assigned towards acceptance of the bids of respondent Nos. 7 and 8 are not all acceptable. Referring to the rejection of bids of Sri Coming Star Brach on ground of the envelope containing the bids being fastened by glue, the petitioner has contended that applying the same yardstick and parameter the bids offered by the respondent Nos. 7 and 8 could not have been accepted. It is the contention of the petitioner that there is no basic difference between the envelope fastened with glue and the one fastened with cello tape. Thus, according to the petitioner, the respondents, most illegally and arbitrarily adopted two different standards in identical situation and the same was due to extraneous consideration. 9. Objecting to the aforesaid reason assigned for acceptance of the bids of respondent Nos. 7 and 8, the petitioner submitted Annexure-V objection dated 19.7.2006. Thus, according to the petitioner, the respondents, most illegally and arbitrarily adopted two different standards in identical situation and the same was due to extraneous consideration. 9. Objecting to the aforesaid reason assigned for acceptance of the bids of respondent Nos. 7 and 8, the petitioner submitted Annexure-V objection dated 19.7.2006. However, when no reply was furnished, the representative of the petitioner personally met the respondent No. 3, the Regional Officer seeking reply of the objection dated 19.7.2006. However, the said authority stated that the reply furnished on 18.7.2006 would hold the field and no further reply was required. Being aggrieved, the petitioner made Annexure-VI representation dated 2.8.2006 to the respondent No 2. 10. When the matter rested, thus, the petitioner could come to know that the authority, without placing the bids of the parties before the tender committee sent estimates of the work in question prepared on the basis of the bids of the respondent No. 7 for sanction of the estimated amounts, to the concerned Department of the Ministry of Shipping, Road, Transport & Highways through the respondent No. 2, According to the petitioner the bids offered by the respondent No. 7 being defective for more than one reasons, his bid could not have been accepted. The petitioner made further representation on 28.9.2006 making a grievance against the same and the representation was submitted to the respondent No. 2. However, this representation also did not yield any result. Eventually on 10.10.2006, when the representative of the petitioner approached the respondent-authorities, he came to know that the work in question had been allotted to the respondent No. 7. However, the petitioner was not furnished with the copy of the work order. 11. It is in the aforesaid circumstances, the petitioner invoked the writ jurisdiction of this Court and this Court by order dated 27.10.2006 suspended the work order issued in favour of the respondent No. 7. In view of this interim order, the work order issued in favour of the respondent No. 7 has not been materialized. 12. The official respondents have filed their counter affidavit. The respondent No. 7, who has filed the application, registered and numbered as Misc. Case No. 4209/2006 for vacating the interim order dated 27.10.2006 has projected the same as the counter affidavit. 12. The official respondents have filed their counter affidavit. The respondent No. 7, who has filed the application, registered and numbered as Misc. Case No. 4209/2006 for vacating the interim order dated 27.10.2006 has projected the same as the counter affidavit. The petitioner apart from filing reply affidavits to the counter affidavit of the official respondents as well as the application filed by the respondent No. 7 for vacating the interim order has also filed an additional affidavit. In the additional affidavit filed, the petitioner has brought on record the letter dated 16.10.2006 issued by the Executive Engineer of the Regional Office to the respondent No. 7, by which, while acknowledging receipt of performance security amount of Rs. 1,77,300, he was also requested to furnish the qualifications of the supervisors and enumerators, which were not furnished as required as per NIT. Situated thus, the petitioner once again requested the authority to furnish the copy of work order issued in favour of the respondent No. 7. However, the petitioner was not informed anything. 13. The official respondents in their counter affidavit have contended that in response to the NIT, altogether 6 tenders were received including that of the petitioner. The tender committee evaluated the valid bids and the rate quoted by the respondent No. 7 (Rs. 88,52,290) was found to be the lowest. The bid offered by the petitioner was Rs. 1,16,59,160. As regards the sealing of bids, it has been contended that the nature of sealing was not prescribed in the NIT. According to the respondents the expension was felt necessary to attract more prospective bidders from far flung areas and that the petitioner having not objected to the extension except the method of sealing the envelops, the plea regarding extension is ill founded. It has been contended that the bids could not be opened on 10.7.2006 as some of the members of the tender committee were busy with some other commitments. Reacting to the plea of the petitioner that envelops containing the bids sealed by cello tape is not as per the specification in the NIT, the respondents have stated that the envelops sealed by cello tape cannot be tampered with and thus there was nothing wrong in accepting the bids as properly sealed. According to them the envelops with cello tapes cannot be equated with the envelops sealed by gum/glue. 14. According to them the envelops with cello tapes cannot be equated with the envelops sealed by gum/glue. 14. From the counter affidavit of the respondents, it is an admitted position that the respondent No. 7 did not submit alongwith his bid the list of supervisor and enumerators alongwith their qualification. The respondents in paragraphs 12, 22 and 27 of the affidavit have admitted this position. As per the statements made, the respondent No. 7 has mentioned in his bid forwarding letter that he would submit the list of supervisors and enumerators within one week of receipt of the work order. In paragraph 24 of the counter affidavit the respondents have stated that the respondent No. 7 submitted his performance security on 13.10.2006 and the list of supervisors and enumerators with their qualification have also been received. Thus, there is no dispute that the respondent No. 7 submitted the list of enumerators and supervisors much after submission of tender bids, last date of which was 7.7.2006. According to the respondents as the evaluation of the bids is based on the financial bids, the commitment made by the respondent No. 7 was accepted by the tender committee. They have pointed out that similar request as that of respondent No. 7 by three other bidders whose financial bids were also considered, have not furnished the list. 15. In Misc. Case No. 4209/2006, the respondent No. 7, has admitted that in his forwarding letter dated 7.7.2006, submitting his bid, it was indicated that the requisite list of supervisors and enumerators would be submitted within 7 days of award of the work order. According to the respondent No. 7, submission of separate sets of enumerators and supervisors for each count stations simultaneously with the bids was not an essential requirement. In paragraph 4 of the application, he has admitted that it was only on 13.10.2006, he submitted the list of enumerators and supervisors and after the issuance of the Annexure-IX letter dated 16.10.2006 annexed to the additional affidavit filed by the petitioner, he also submitted the qualifications of the enumerators and supervisors on 20.10.2006. Like that of the official respondents, the respondent No. 7 has also emphasized on difference of the financial bids between him and the petitioner. Like that of the official respondents, the respondent No. 7 has also emphasized on difference of the financial bids between him and the petitioner. According to him, the bid offered by him being at a much lower rate than that of the petitioner, the respondents have rightly awarded the work to him. 16. I have heard Mr. N. Dutta, learned senior counsel assisted by Md. Aslam, learned Counsel for the petitioner. I have also heard Mr. S.P. Roy, learned Counsel representing the respondent No. 7 alongwith Mr. B.K. Jain, learned advocate. Mr. N. Baruah, learned CGSC, made submissions on behalf of the official respondents. He has also produced the records. In tune with the submissions made regarding the procedure of submitting bids in sealed cover, the learned Counsel for the parties referred to the dictionary meaning of the term "sealed bid". While Mr. Dutta, learned senior counsel for the petitioner, in support of his submissions on the basis of the pleadings, has referred to the decisions reported in Ramana Dayaram Shetty. v. International Airport Authority of India and Ors. (1979) 3 SCC 489 ; Dutta Associates (P.) Ltd. v. Indo Merchantiles (P.) Ltd. and Ors. (1997) 1 SCC 53 ; Ameya Developers (P.) Ltd. v. State of Assam and Ors. 2006 (2) GLT 483 and 775; Educomp Solutions Ltd. and Ors. v. State of Assam and Ors., Mr. S.P. Roy, learned Counsel for the respondent No. 7 has placed reliance on the decisions Noble Resources Ltd. v. State of Orissa AIR 2006 SCW 5408 ; Sterling Computers Ltd. v. M/s. M & N Publications Ltd. and Ors. AIR 1999 SCW 53 : AIR 1996 SC 51 ; Ekta Shakti Foundation v. Government of NCT of Delhi AIR 2006 SC 2609 ; M/s. Fodder Steel Corporation v. Ganesh Engineering Works AIR 1991 SC 1579 ; Tata Cellular v. Union of India (1994) 6 SCC 651 ; M/s. Medley Minerals India Ltd. v. State of Orissa and Ors. AIR 2004 SCW 5565; Y. Konda Reddy v. State of A.P. and Ors. AIR 1997 AP 121 ; Punjab State Electricity Board, Patiala v. M/s. Abinash Textile Trading Agencies, Ambala City AIR 1986 P&H 323 ; Laxmi Sales Corporation v. M/s Bolanging Trading Company AIR 2005 SCW 1337 ; Ameya Developers (P.) Ltd. v. State of Assam and Ors. AIR 2004 SCW 5565; Y. Konda Reddy v. State of A.P. and Ors. AIR 1997 AP 121 ; Punjab State Electricity Board, Patiala v. M/s. Abinash Textile Trading Agencies, Ambala City AIR 1986 P&H 323 ; Laxmi Sales Corporation v. M/s Bolanging Trading Company AIR 2005 SCW 1337 ; Ameya Developers (P.) Ltd. v. State of Assam and Ors. 2006 (2) GLT 471; Asia Foundation and Construction Ltd. v. Trafalgar House Construction (I) Ltd. 1997 1 SCC 738 ; Dewanchand Ramsaran (P.) Ltd. v. Union of India and Ors. 2005 (2) GLT 232 and Phoolchand Sethi v. Nagpur University and Ors. AIR 1957 Bom. 215 . 17. During the course of hearing, Mr. Dutta, learned Counsel for the petitioner referring to the bid documents, more particularly, the document submitted by the respondent No. 7 in respect of enumerators and supervisors, submitted that even if, the mandatory requirement of submission of list of enumerators and supervisors alongwith their qualifications alongwith the tender bid is ignored, then also going by the particulars disclosed in the list of enumerators and supervisors submitted by the respondent No. 7 after the opening of tenders, the same do not conform to the requirements of the conditions of the NIT. According to Mr. Dutta, with the number of enumerators and supervisors through whom the respondent No. 7 seeks to execute the works, same is reasonably not practicable and, thus, there was no question of offering the work to the respondent No. 7. This aspect of the matter will come into consideration only if the two grounds, viz. (i) of the tender of respondent No. 7 being defective, same having not been submitted in the sealed envelop as required and (ii) the tender submitted by the respondent No. 7 having not accompanied the list of enumerators and supervisors with their qualification ought to have been rejected at the threshold are not accepted. 18. Learned Counsel for the parties have extensively argued on the interpretation of "sealed bid", Mr. Dutta, learned senior counsel for the petitioner has placed reliance on the Chambers 20th Century Dictionary as well as Black's Law Dictionary to emphasis on the meaning of "seal" and "sealed". On the other hand, Mr. S.P. Roy learned Counsel for the respondent No. 7 has placed reliance on New Webster's Dictionary. Referring the dictionary meaning of "seal" and "seal bid", while it is the submission of Mr. On the other hand, Mr. S.P. Roy learned Counsel for the respondent No. 7 has placed reliance on New Webster's Dictionary. Referring the dictionary meaning of "seal" and "seal bid", while it is the submission of Mr. Dutta, learned Counsel for the petitioner that the sealed bid necessarily means and implies that the bid must contain in a closed envelope fastened with seal, which mean a ring, stone, piece of metal or other hard object engraved with a figure, signed, or inscription for the purpose of making an impression on a soft substance, as wax, plastic or paper, according to Mr. Roy, learned Counsel for the respondent No. 7, the expression "sealed bid" means one of the proposals submitted in sealed packets by several contractors in competition for a particular contract, the contract being awarded to the most reasonable bidder and such sealed bid need not necessarily be sealed in the meaning of "seal". According to him, it is enough, if the envelop is closed securely by any kind of fastening that must be broken before access can be obtained to what is packed inside. 19. By the NIT in question, sealed bids were invited and there was no indication that such sealed bid must contain the seal of the party within the meaning of the term "seal". The literal meaning of "seal" cannot be applied to the term "sealed bid". "Sealed bid" means the bids submitted 'in sealed packet by the tenderer, which is so closed that access to the contents, is impossible without breaking the fastening. The expression "seal" in the present context does not involve an affixture of the seal of the tenderer, such as impressing a signet in wax, etc., as evidence or guarantee of authenticity. As has been observed by the Apex Court in the case of The Martand Diary and Farm v. Union of India and Ors. AIR 1975 SC 1492 , an article may be regarded as put in sealed containers if it is closed securely in any vessel or container by any kind of fastening or covering that must be broken before access can be obtained to what is packed inside. The Apex Court further observed - "It is not for the court to launch on obscure fiscal astrology but merely to construe what has been expressed in plain words". The Apex Court further observed - "It is not for the court to launch on obscure fiscal astrology but merely to construe what has been expressed in plain words". In that case, the Apex Court was interpreting the terms "sealed container" in the context of exemption from tax. Referring to the earlier decision Commissioner of Sales Tax, UP (196S) 21 STC 63 (SO, in which it was held that it is difficult to give to the expression "sealed container" a meaning different from the ordinary dictionary meaning, the Apex Court interpreted the term sealed container as discussed above and observed that this is the popular, perhaps the literal meaning of the expression. 20. In the instant case, the bid offered by the respondent No. 7 in closed envelope was fastened with cello tape, unlike the one whose bid was rejected since the bid was in an envelope fastened with gum/glue. While gum and/or glue cannot be said to be an object which can securely fasten the contents in the envelope, but in case of the envelope being fastened with cello tape, that will ensure that the contents in the envelope do not have any access without first breaking the envelope before access can be obtained to what is packed inside. While the gum and/or glue can easily be removed, same is not the case with cello tape. User of cello tape in the envelope containing the bids would mean that the bid is in sealed cover. As observed by the Apex Court in Martand Diary (supra) the expression "seal" in this context does not involve an affixture of the seal of the tenderer. The cello tape used by the respondent No. 7 towards closure of the envelope containing his bid can be regarded as put in a sealed cover, same being in the category of the one indicated in the aforesaid decision of the Apex Court, in which the Apex Court observed that, an article may regarded as put in sealed container, if it is closed securely in any vessel or container by any kind of fastening or covering that must be broken before access can be had to what is contained inside. 21. 21. In view of the above, the first contention raised on behalf of the petitioner regarding sealed bid, cannot be accepted and I am of the considered opinion that the respondent authority rightly considered the bid offered by the respondent No. 7. This now leads us to the most important issue as to whether the bid of the respondent No. 7 having not contained the list of enumerators and supervisors, ought to have been rejected. As per the own admission of the respondents there is no dispute that the respondent No. 7, while offering his bid did not submit the list of enumerators and supervisors alongwith their qualification. He made it known in his forwarding letter that the same would be submitted only after issuance of the work order in his favour. As noticed above, the last date of submission of tender with the extended date was 10.7.2006. The respondent No. 7 submitted his aforesaid list much thereafter, i.e., on 13.10.2006. The said also did not contain the qualifications of the enumerators and supervisors. Same was submitted on 20.10.2006 on a request being made by Annexure-IX letter dated 16.10.2006 annexed to the additional affidavit filed by the petitioner. 22. While it is the submission of Mr. Dutta, learned Counsel for the petitioner that the essential condition of submission of the list having not been fulfilled, the bid offered by the respondent No. 7 was liable to be rejected, it is the submission of Mr. S.P. Roy, learned Counsel for the respondent No. 7 that the submission of list being not a mandatory requirement, submission of the same at a later point of time was not fatal. The NIT has been quoted above. As per clause 2 of the same the sealed bids were to be submitted alongwith the proposed list of enumerators and supervisors as well as their qualifications. Referring to the term "may" appearing in clause 2, while Mr. Roy submitted that the submissions of the list enumerators and supervisors was not mandatory, Mr. Dutta, learned Counsel for the petitioner submitted that the same was mandatory, more particularly, having regard to the nature of the work. He submitted that if, the submission of list enumerators and supervisors was only optional, same ought to have been disclosed in the NIT itself. 23. Dutta, learned Counsel for the petitioner submitted that the same was mandatory, more particularly, having regard to the nature of the work. He submitted that if, the submission of list enumerators and supervisors was only optional, same ought to have been disclosed in the NIT itself. 23. The job involved is the collection and compilation of traffic census data in two phases on designated count stations on National Highways. By the very nature of the job, it involves employment of manpower and this is precisely the reason as to. why it was stipulated in clause 2 of the NIT that the bids should be submitted alongwith the proposed list of enumerators and supervisors with their qualifications. The very expression "alongwith" means, "together, in company or consumption". Thus, when the NIT Itself provided that the bid should be submitted alongwith the list, same was an essential condition and could not have been waived and that too without any indication thereof in the NIT. It is in this context, Mr. Dutta, learned Counsel for the petitioner has placed reliance on the decisions of the Apex Court in Ramana Dayaram Shett (supra) and Dutta Associates (supra). In both the decisions it has been held that the standard of eligibility laid down in the notice for tender cannot be departed from arbitrarily. In Raman Dayaram Shetty the Apex Court observed, thus: ...The power or discretion of the Government in the matter of grant of largesse including award of jobs, contracts, quotas, licences, etc., must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory. 24. In Dutta Associates (supra) the Apex Court having noticed that the tender notice did not specify the "viability range", more significantly the tender notice did not say that the same would be determined after receiving tenders, observed, thus: In the circumstances, we affirm the judgment of the Division Bench in writ appeal on the grounds stated above and direct that fresh tender may be floated in the light of the observations made in this judgment. We reiterate that whatever procedure the Government proposes to follow in accepting the tender must be clearly stated in the tender notice. The consideration of the tenders received and the procedure to be followed In the matter of acceptance of a tender should be transparent, fair and open. While a bona fide error or error of judgment would not certainly matter, any abuse of power for extraneous reasons, it is obvious, would expose the authorities concerned, whether it is the Minister for Excise or the Commissioner of Excise, to appropriate penalties at the hands of the Court, following the law laid down by this Court in Shiv Sagar Tiwari v. Union of India (In Re: Capt. Satish Sharma and Sheila Kaul). 25. The decision in Ameya Developers and Edocmp Solutions Ltd. (supra), are also on the same principal. It has been reiterated in Ameya Developers that the proposition that even a decision to award contract must be arrived at after taking into account all relevant considerations and eschewing irrelevant considerations and that the reasons for awarding the contract must be self evident cannot, for a moment be doubted. In Edocomp Solutions Ltd., rejecting the plea that it is not at all necessary for the Governmental agencies to notify the selection criteria in detail even at the threshold and the same can be, done at any stage, this Court questioning that would it mean that the selection criteria can be evolved after opening of the technical bids and would it not give room and leverage to the decision makers to manipulated the results to suit the convenience of a particular bidder, held that if the particular criteria is not notified at the beginning, the same should be made known to all interested before submission of bids. 26. Although, the respondents in their counter affidavit have emphasized on the financial bids of the parties, but the same cannot be the sole determining factor. According to the respondents there is huge price difference of Rs. 28,06,870 between the price bids of the respondent No. 7 and the petitioner. It is in this context, Mr. 26. Although, the respondents in their counter affidavit have emphasized on the financial bids of the parties, but the same cannot be the sole determining factor. According to the respondents there is huge price difference of Rs. 28,06,870 between the price bids of the respondent No. 7 and the petitioner. It is in this context, Mr. Dutta, learned Counsel for the petitioner submitted that even leaving aside the question of acceptability of the bid offered by the respondent No. 7 without the list of enumerators and supervisors, with number of enumerators and supervisors, list of which was submitted by the respondent No. 7 at a much later point of time, the execution of the works by the respondent No. 7 would not be viable and/or feasible; 27. As observed above, submission of the list of enumerators and supervisors alongwith the tender was a mandatory and essential requirement of tender. The financial bid of the bidders will have a definite bearing when considered alongwith the list of enumerators and supervisors. While the petitioner complied with the requirement of submission of the list, the respondent No. 7 did not. While considering the financial bid of the respondent No. 7, the list of enumerators and supervisors was not before the authority. Thus, the contention of the respondents that there is huge difference of financial bids between the parties is of no consequence. Once, it is found that the tender of the respondent No. 7 in absence of the list of enumerators and supervisors was defective, there is no question of considering his bid as the lowest bid solely on the basis of the price bid. Had it been a case of the respondents that the bids would be considered irrespective of compliance oft the requirement in the tender notice, more particularly, without even furnishing of the list of enumerators and supervisors and that only the lowest bid irrespective of fulfillment of other criteria would be accepted, same ought to have been disclosed in the NIT to maintain transparency, fairness and openness. 28. Once it is held that the tender submitted by the respondent No. 7 without accompanying the same with the list of enumerators and supervisors was contrary to the mandatory and essential requirement of the NIT, his tender is liable to be rejected. 28. Once it is held that the tender submitted by the respondent No. 7 without accompanying the same with the list of enumerators and supervisors was contrary to the mandatory and essential requirement of the NIT, his tender is liable to be rejected. If the tender is rejected on that ground alone, the other grounds on which the learned Counsel for the petitioner emphasized much, need not be gone into. Suffice is to say that those grounds cannot be said to be misplaced. However, no opinion is expressed on those grounds. 29. Mr. S.P. Roy, has placed reliance on the above referred decisions primarily to emphasis the scope and ambit of the writ court in interfering with the contractual matter, the decisions are on the principle regarding satisfaction of the bona fide of the petitioner, weighing of conflicting public interest, primary concern is to see whether there is any infirmity in the decision making process, not to interpret every term of NIT literally, etc. There cannot be any quarrel with the said principles. This Court is not oblivious of its limited scope and jurisdiction in such matter. This Court is also aware that this Court cannot act as an appellate authority and examine details of terms of contract and that its primary concern is to see whether there is any infirmity in the decision making process. 30. The manner and method in which the matter has been finalized with the respondent No. 7 have been noted above. Can it be said that although the respondent No. 7 did not conform to the mandatory and essential requirement of the conditions of the NIT, the decision making process of the respondents towards awarding the contract to him is above the judicial scrutiny and interference, so as to bring it within the principles of non-interference in such matter exercising the writ jurisdiction? Certainly not. Apart from the fact that the respondent No. 7 did not conform to the mandatory and essential requirement of the NIT, the kind of consideration, which was giver to him, was also not given to other bidders. It was also not disclosed in the NIT that a deviation can be made as regards the submissions of list of enumerators and supervisors. Thus, there was no transparency, fair play and openness in the matter. In such a situation, the decisions on which Mr. It was also not disclosed in the NIT that a deviation can be made as regards the submissions of list of enumerators and supervisors. Thus, there was no transparency, fair play and openness in the matter. In such a situation, the decisions on which Mr. Roy, learned Counsel for the respondent No. 7 has placed reliance are of no help to the case of the respondent No. 7. 31. In view of the above, I have no hesitation to hold that the decision of the respondents to award the contract to the respondent No 7 is vitiated and liable to be struck down. Consequently, the work order issued in favour of the respondent No. 7 in respect of the NIT in question is set aside and quashed. 32. Writ petition is allowed, leaving the parties to bear their own costs. Petition allowed.