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2014 DIGILAW 365 (GAU)

Girin Deka v. State of Assam

2014-03-25

BIPLAB KUMAR SHARMA

body2014
JUDGMENT Biplab Kumar Sharma, J. 1. All the writ petitions, pertaining to the same tender process and raising the same grievance of alleged illegal rejection of technical bids of the petitioners, have been heard together and are being disposed of by this common judgment and order. The brief facts leading to filing of the instant writ petitions are that the petitioners, in response to the Request For Proposal (RFP), dated 20.12.2013, for collection of toll at Gangadhar Bridge No. 837/1 (Bir Chilarai Dolong), over river Gangadhar on the National Highway No. 37, for the period from 21.01.2014 to 20.01.2014, issued by the Government of Assam, in the Public Works (Bldg. & NH) Department, submitted tenders under two-bid system, i.e., (i) technical bid and (ii) financial bid. 2. All the petitioners are aggrieved by the rejection of their technical bids, as indicated by the impugned letters dated 13.02.2014. The grounds assigned for rejection of the petitioners' tenders as non-responsive are as follows: WP (C) 871/2014 Bidder has submitted Net worth & Net Accrual in the name of M/s. Girin Deka & Co. and also not in prescribed format. WHO 872/2014 (i) Detail information, history is not reflected in the affidavit (Litigation/Arbitration) with regards Hon'ble High Court Case No. 6512/2013 against the Deptt. (ii) Valuation Certificate submitted but not certified by CA. WP (C) 873/2014 (i) Latest IT return for the year 2013-14 is not submitted. (ii) Detail information, history is not reflected in the affidavit (Litigation/Arbitration with regards to Hon'ble High Court WP(C) No. 2968/2012 against the Deptt. 3. According to the petitioners, the grounds assigned by the respondents declaring the petitioners' technical bids as non-responsive are not valid grounds. It is the plea of the petitioners that a large number of tenders have been rejected, confining the choice at the level of financial bid to only six tenders, with a view to pick up the favourite one. 4. The respondents have resisted the writ petitions by filing counter-affidavits. According to the respondents, the petitioners having not fulfilled the required criteria mandatorily required to be fulfilled, their tenders have been rejected at the level of evaluation of the technical bids. 5. I have heard Mr. M.K. Choudhury, learned Senior counsel representing the petitioner in WP(C) 871/2014 (first writ petition); Mr. P.N. Goswami, learned counsel representing the petitioner in WP(C) 872/2014 (second writ petition); and Mr. 5. I have heard Mr. M.K. Choudhury, learned Senior counsel representing the petitioner in WP(C) 871/2014 (first writ petition); Mr. P.N. Goswami, learned counsel representing the petitioner in WP(C) 872/2014 (second writ petition); and Mr. T.J. Mahanta, learned counsel representing the petitioner in WP(C) 873/2014 (third writ petition). I have also perused the entire materials on record including the records produced by Mrs. V.L. Singh, learned Standing counsel, PWD, in support of her arguments in favour of the respondents. 6. During the course of hearing of the writ petitions, the officials of the respondents, namely, Sri Nirmal Nunisha, Executive Engineer, PWD (NH), Chandmari, Guwahati; Sri Sumitra Mohan Saikia, Asstt. Executive Engineer, PWD (NH), Chandmari, Guwahati; and Sri Ram Krishna Sarmah, Junior Engineer, PWD, Office of the CE, PWD (NH), Chandmari, Guwahati, were also present along with the records and Mr. Nunisha rendered assistance to Mrs. V.L. Singh, learned Standing counsel, PWD. Mr. Nunisha also responded to the queries made by the Court during the course of hearing. 7. Learned counsel for the petitioners have also placed reliance on certain decisions of the Apex Court as well as this Court, such as New Horizons Limited & Another v. Union of India & Others, (1995) 1 SCC 478 , Jespar I. Slong v. State of Meghalaya & Others, (2004) 11 SCC 485 , Poddar Steel Corporation v. Ganesh Engineering Works & Others, (1991) 3 SCC 273 and Kirloskar Brothers Ltd. v. State of Tripura, 2000 (2) GLT 476. 8. Learned counsel representing the respondents has also placed reliance on certain decisions, which are reported in Air India Ltd. v. Cochin International Airport Ltd. & Others, (2000) 2 SCC 617 and Jain Video on Wheels Ltd. v. Union of India & Others, 2013 (5) GLT 151. She has also placed reliance on the orders passed by this Court in Md. Moinul Hoque Choudhury v. State of Assam & Others, WP (C) 269 of 2014, Mehetabul Hoque v. Moinul Hague Choudhury & Others, WA 21 of 2014 and Anchad Jwhalao Brahma & Another v. State of Assam & Others, WP (C) 2919 of 2012. 9. I have carefully considered the pleadings exchanged by the parties and the submissions made by the learned counsel appearing for them. I have also very carefully considered the relevant materials. 10. 9. I have carefully considered the pleadings exchanged by the parties and the submissions made by the learned counsel appearing for them. I have also very carefully considered the relevant materials. 10. As to what are the grounds of rejection of the technical bids of the petitioners as non-responsive have been noted above. Referring to the grounds urged in the counter-affidavits filed by the respondents, it is the stand of the petitioners that in the said counter-affidavits, the respondents have enlarged the grounds of rejection of the petitioners' technical bids, which is impermissible in law. In this connection, Mr. M.K. Choudhury, learned Senior counsel representing the petitioner in the first writ petition, has referred to the decision of the Apex Court, in Mohinder Singh Gill & Another v. The Chief Election Commissioner, (1978) 1 SCC 405 , in which it has been held thus: 8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J., in Gordhandas Bhanji ( AIR 1952 SC 16 ). Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended and are intended to affect the actions and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older. 11. Orders are not like old wine becoming better as they grow older. 11. Although in the impugned orders dated 13.02.2014, the grounds quoted above have been referred to, but, on perusal of the relevant records, including the report of the Technical Bid Evaluation Committee comprising of the Chief Engineer, PWD (NH Works); Superintending Engineer (NH Planning); Under Secretary to the Government of Assam, PWD (NH Br.) and the Executive Engineer (NH Project), Office of the Chief Engineer, PWD (NH Works); it is found that the following are the grounds on which the technical bids of the petitioners have been rejected: WP (C) 871/2014 (Girin Deka): (i) Net cash accruals and Net Worth is not in format as per requirement of Clause No. 2.6 and 2.7 (IV) of Bid document (Format of Net Cash Accruals and Net worth is given in page No. 28 of Bid document). (ii) Net Cash accrual though submitted in proper format, the amount on 31.03.2013 does not tally with balance sheet (Page-64). In this connection, it is to be stated that Sri Deka has shown Net cash accruals, as on 31.03.2013, at Rs. 2,67,63,416.00, but the balance sheet in Page No. 64 shows: Rs. 2,13,32,503.20 + 58,80,390 = Rs. 2,72,12,893.20, i.e. Depreciation + Net profit transferred to capital Account. Actually it should be Rs. 2,67,63,416.00 by adding depreciation + Net profit. (iii) The bidder has submitted the bid as Sri Girin Deka (individual), but the bidder has submitted the documents of M/s. Girin Deka & Company, which does not permit as per clause No. 2.5.2(ii) of the Bid document. (iv) Pages 38, 49, 50, 52, 53, 54, 55, 57, 58, 59, 60, 61, 62, 69, 70, 72, 73, 74, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 88, 89, 90, 91, 92, 93, 94, 95, 97, 99, 100 are signed but without seal, as required as per Annexure-V of Appendix-I of Bid document. WP (C) 872/2014: (Prabir Kalita) (i) Valuation certificate submitted but not certified on the body of valuation certificate by C.A. as per Clause No. 2.7 sub-clause -IV. (ii) Detail information history is not reflected in the affidavit (Litigation/Arbitration) with regards to the Hon'ble High Court WP(C) No. 6512/2013 against the Department as per Clause No. 2.7(xi). (iii) Net Cash accrual and Net Worth not submitted as per Clause No. 2.7(iii). (ii) Detail information history is not reflected in the affidavit (Litigation/Arbitration) with regards to the Hon'ble High Court WP(C) No. 6512/2013 against the Department as per Clause No. 2.7(xi). (iii) Net Cash accrual and Net Worth not submitted as per Clause No. 2.7(iii). WP(C) 873/2014: Rezzaque Hussain: (i) Latest IT return for the year 2013-14 is not submitted as per Clause No. 2.7 (vi). (ii) IT return for the year 2010-11, 2011-12 not submitted as per Clause No. 2.7 (vi). (iii) Valuation report not certified by Chartered Accountant as per Clause No. 2.7 (iv). (iv) Detail information history is not reflected in the affidavit (Litigation/Arbitration) with regards to the Hon'ble High Court WP(C) No. 2968/2012 against the Department as per Clause No. 2.7(xi). (v) Pages are signed without seal as per Annexure-V of Appendix-I. 12. The Technical Bid Evaluation Committee has made the aforesaid remarks in its meeting held on 13.02.2014 and, thus, when the impugned communications were made, the aforesaid grounds were very much available. On being asked as to why all the grounds of rejection of tenders had not been communicated to the petitioners, the learned Standing counsel, PWD, upon instruction from Mr. Nunisha, Executive Engineer, PWD (NH), who was present in the Court, made twofold submissions, which are: (i) Since as per the stipulations made in the tender documents, in case of deviation, even one condition was sufficient for rejection of the tender, irrespective of communication of all the grounds, any one of such grounds was sufficient towards rejection of the tenders submitted by the tenderers; and (ii) the other grounds referred to above have also been communicated to the petitioners subsequently vide letter dated 15.02.2014 (posted on 24.02.2014). 13. The decision in Mahindra Singh Gill (supra), is on the point of justification of an order as it stood on the date of issuance of the same with the contents thereof. The said position cannot be improved upon by filing further affidavits/additional affidavits. However, the same is not the position in the case in hand. The grounds of rejection of the technical bids of the petitioners are available on records and the same have also been communicated, firstly, by letter dated 13.02.2014, and, thereafter by letter dated 15.02.2014, sent by registered post on 24.02.2014. However, the same is not the position in the case in hand. The grounds of rejection of the technical bids of the petitioners are available on records and the same have also been communicated, firstly, by letter dated 13.02.2014, and, thereafter by letter dated 15.02.2014, sent by registered post on 24.02.2014. The fact of the matter is that the Technical Bid Evaluation Committee duly considered the tenders submitted by the tenderers and, thereafter, rejected the technical bids submitted by the petitioners on the ground of being non-responsive for the reasons indicated in their bid evaluation process, which has been quoted above. 14. According to the petitioner involved in the first writ petition, although the petitioner submitted his bid in his individual capacity and the documents submitted along with his tender were pertaining to his proprietorial firm, but, certainly the documents, pertaining to his proprietorial firm, are referable towards consideration of his tender as an individual. In this regard, Mr. M.K. Choudhury, learned Senior counsel, submitted that the registration of the petitioner with the PWD as a registered contractor being in his name, the Bid Evaluation Committee ought to have considered that aspect of the matter. In a nutshell, it is the case of the petitioner that Sri Girin Deka and M/s. Girin Deka & Co. being represented by one and the same person, his technical bid could not have been rejected. As regards the contention of the respondents that the Net worth & accrual, as submitted by the petitioner (i.e., Sri Girin Deka), was not in the prescribed format, it was submitted by Mr. Choudhury, learned Senior counsel, that insignificant deviations here and there cannot be construed to be a violation of any essential condition. 15. In WP(C) 872/2014 (second writ petition), the learned counsel representing the petitioner submitted that the same very documents, submitted by the petitioner along with his tender having been accepted in respect of another tender process, namely, tender process for the Koliabhumura Bridge, there cannot be any earthly reason as to why the same very documents could not be accepted in respect of the present NIT. 16. 16. As regards the plea of non-disclosure of any pending litigation by the tenderer in the tender documents, it is the plea of the petitioner, in the second writ petition, that the litigation, pending in respect of the petitioner, being not in connection with any work order preceding five years of the present NIT, nondisclosure of filing of the particular writ petition was not such a vital lapse which could render his bid as non-responsive. 17. In the third writ petition also, the learned counsel representing the petitioner, adopting the arguments advanced by the learned counsel for the petitioner in the second writ petition, submits that nothing was apprised to the petitioner when the bids were opened. According to the learned counsel for the petitioner in the third writ petition, the rejection of the technical bid of the petitioner as non-responsive is illegal and has been taken recourse to, to eliminate him from the tender process so as to confine the same only with a selected few. 18. In Jespar I. Slong (supra), it was held by the Apex Court that the restrictions, in respect of the norms for award of contracts, should not be arbitrary and must be justifiable and based on some policy or valid principles, which by themselves should be reasonable and not discriminatory. It was further held that any act, which excluded competition from any part of the trade and commerce concerned, by forming cartels, should not be permitted. 19. As has been held by the Apex Court in Ambica Quarry Works v. State of Gujarat, AIR 1987 SC 1073 , that: The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it. While it is true that exclusion of competition with restrictive and arbitrary approach is not permissible, but it cannot be said that as a measure of expansion of the said principle even the defective tenders, not fulfilling the required conditions laid down in the NIT, should also be accepted. 20. While it is true that exclusion of competition with restrictive and arbitrary approach is not permissible, but it cannot be said that as a measure of expansion of the said principle even the defective tenders, not fulfilling the required conditions laid down in the NIT, should also be accepted. 20. In New Horizons Ltd. (supra), on which the learned counsel for the petitioner, in the first writ petition, has placed reliance, the Apex Court, dealing with the particular "experience", as set out in the particular advertisement inviting tenders, found that there was no basis for the same. In the given facts situations, it was held that particular "experience" was not required in the own name of the tenderer, but could be in the name of the partnership firm with which the tenderer had entered into partnership and the tender had been submitted in the name of the partnership firm. Same is not the case in hand. As per the requirement of the tender conditions, the tenderer could submit tender either in his individual capacity or as a company, partnership firm, duly registered co-operative society, proprietorial firm etc. Admittedly, the petitioner submitted his tender as an individual and not as a proprietorial firm, and, all the documents, submitted along with the tender, were concerning his proprietorial firm. During the course of hearing, it was submitted that the petitioner has three proprietorial firms. 21. Above apart, we have also noticed the other grounds of rejection of the tenders submitted by the petitioner. If the petitioner did not comply with the mandatory requirements of the tender conditions, as reflected in the above-quoted chart prepared by the Tender Evaluation Committee, the said committee was within its jurisdiction and competence to reject the tender submitted by the petitioner. 22. In Air India Ltd. (supra), the Apex Court, dealing with the scope of judicial review in such matters, held that price need not always be the decisive factor and that the decision has to be made on the basis of overall view of the transaction after weighing the various factors and having regard to commercial viability. The Court, exercising writ jurisdiction, cannot interfere with the decision, but it can interfere with the decision-making process on the grounds of mala fide, unreasonableness or arbitrariness. The Court should exercise its discriminatory power with great caution and only in furtherance of overwhelming public interest. 23. The Court, exercising writ jurisdiction, cannot interfere with the decision, but it can interfere with the decision-making process on the grounds of mala fide, unreasonableness or arbitrariness. The Court should exercise its discriminatory power with great caution and only in furtherance of overwhelming public interest. 23. In Jain Video on Wheels (Dr.) Ltd. (supra), this Court, dealing with the power of judicial review under Article 226 of the Constitution of India, in the matter of tender evaluation etc. by the expert technical body, held that any relaxation of the eligibility conditions of the tender will amount to denial of opportunity to those, who considered themselves ineligible and therefore did not participate in the tender process. It has further been held that the terms of tender, prescribing the eligibility criteria, are open to interference only if they are arbitrary, discriminatory or bias, but not open to interference merely because the Court feels that some other terms would have been more preferable. 24. The reliance placed by the learned Standing counsel, PWD, on some other orders of this Court is with a view to buttress the argument that in those writ petitions, the Court having already ordered to go ahead with the process of finalization of the tender process, in question, this Court would be reluctant to interfere with the said tender process. 25. As regards the submission made by the learned counsel for the petitioners, that since they have offered much higher bids than the six tenderers, whose bids have been found technically viable, the respondents ought to have considered that aspect of the matter, the learned Standing counsel, PWD, has produced a copy of the letter, dated 20.07.2012, addressed to the Govt. of Assam, in the Public Works (Highway) Department, by the Govt. of India, Ministry of Road, Transport and Highways, conveying the decision of the Govt. of India on calculation of levy for bridge over the river Gangadhar. As per the said letter, upon examination of the matter in the Ministry, a decision has been arrived at to the effect that the fee will continue to be levied at a reduced rate of 40% of user fee for the bridge over river Gangadhar in accordance with Rule 3 of the National Highway Fee (Determination of Road and Collection) Rules, 2008 (amended in 2011). 26. 26. It is in the above circumstances, it was submitted by the learned Standing counsel, PWD, that no comparison can be made with the bid value of the earlier years with the bid value offered by the eligible tenderers for this year. It is in this context, the above decision of the Apex Court has been referred by her. 27. Coming to the second writ petition (i.e., WP(C) 872/2014), dealing with the submissions made by the learned counsel for the petitioner that the same very respondents, having found the same very technical bid of the petitioner responsive in respective of the Kolia Bhumura Bridge, the respondents could not have taken a contrary decision in respect of the present tender process pertaining to another bridge, namely, Gangadhar Bridge, it was submitted by Mrs. V.L. Singh, learned Standing counsel, PWD, upon instructions from the officers present, that, in fact, a mistake had been committed by the respondents in accepting the technical bid of the petitioner in respect of the said Kolia Bhumura Bridge. Be it stated here that, eventually, the work pertaining to the same has been settled with another tenderer and not with the petitioner. 28. Learned counsel for the petitioner has referred to the decision in Poddar Steel Corporation (supra), so as to emphasise that minor technical irregularity can be waived. According to him, the purported irregularities, pointed out in the tender submitted by the petitioner, can be waived, same being merely ancillary or subsidiary in nature and cannot be categorized as an essential condition of eligibility. Referring to the decision in Kirloskar Brothers Ltd. (supra), learned counsel for the petitioner also submitted that in case of any lapse towards fulfilling any tender condition, not being an essential condition, the same could have been remedied if a chance was given to the petitioner. 29. In the instant case, the tender conditions have been laid down with the clear stipulation that in case of not meeting with the said conditions, tenders are liable to be rejected. The grounds, on which the petitioners' technical bids have been rejected as non-responsive, cannot be said to be subsidiary or ancillary and not essential. In that view of the matter, both the decisions are of no help to the case of the petitioner. 30. In the third writ petition, the grounds of rejection of the technical bid of the petitioner have been indicated above. In that view of the matter, both the decisions are of no help to the case of the petitioner. 30. In the third writ petition, the grounds of rejection of the technical bid of the petitioner have been indicated above. If the petitioner did not fulfill the said requisite criteria, this Court, exercising writ jurisdiction, cannot sit on appeal over the findings recorded by the Tender Evaluation Committee so as to return another finding. This being the position, coupled with the reasons assigned above, the pleas raised in the instant writ petition are also not sustainable. In view of the above findings, no relief can be granted to the petitioners and accordingly all the writ petitions are dismissed without, however, any order as to costs. Interim orders operating in the proceeding stand vacated.