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2014 DIGILAW 367 (GAU)

Pitambra Books (P. ) Ltd. v. Axom Sarva Siksha Abhijan Mission, Assam

2014-03-25

K.SREEDHAR RAO

body2014
1. Heard Sri S. Murarka, and Sri D. Senapati, counsel for the petitioners in all the writ petitions. Also heard Sri D. Saikia, Additional Advocate General, Assam, assisted by Sri B. Choudhury and Mr. B. Gogoi, counsel for the respondents. 2. In all the writ petitions, the petitioners and the. respondents are common. Axom Sarba Siksha Abhijan Mission, Assam (ASSAM) invited tenders for printing and supply of Evaluation and Practice Book (four line and square line), 2667978 copies, vide Annexure 1 series. The tender conditions insisted that the bidder should be a reputed manufacturer of Exercise Books/Note Books or similar item such as Work Books having minimum annual turnover of Rs. 50 lakh in each financial year, during the last three financial years. The books indented were required for Class-I and Class-II students. The tender conditions further insisted that along with the technical bid, the bidders must submit 10 samples of the Exercise Books/Note Book of similar item such as Work Books, manufactured by the bidders, which should be in accordance with the technical specification. The samples must be duly signed and stamped by the bidder. It is further stipulated that the bidders must submit 10 samples of books manufactured and supplied earlier under their own brand name of similar works executed by the bidders. 3. The petitioners, pursuant to the tender notification submitted their technical and financial bids. The technical bids were scrutinized. The bid of the petitioners were rejected on the ground that the bidders are not manufacturers, Registration Certificate from DIC not submitted, but the factory licence has been submitted and the samples of bidders' own brand not found, but samples submitted are printed for other organization. 4. The petitioners being aggrieved by the said rejection of the bids filed WP(C) No. 6881 of 2013 along with other batch of writ petitions in respect of the 5 tenders. The petitioners submitted 5 tenders for similar works, they were all rejected for the same reasons and the bid of respondent No. 3 was accepted in all the cases. The petitioners filed separate writ petitions for rejection of all the tenders. The petitioners submitted 5 tenders for similar works, they were all rejected for the same reasons and the bid of respondent No. 3 was accepted in all the cases. The petitioners filed separate writ petitions for rejection of all the tenders. This court, in WP(C) No. 6881 of 2013 and other batch of cases, directed the ASSAM to reconsider the bids of the petitioners within 7 days from the date of receipt of a certified copy of the order and the bid of respondent No. 3 is accepted in all the cases, however, permitted the respondent No. 3 to proceed with the supply of Text Books till the case of the petitioners is reconsidered. The respondent No. 2, pursuant to the order of the court, reconsidered all the bids of the petitioners and rejected the same by passing the order, dated 16.12.2013 citing the same reasons, given earlier for rejection. It is further slated in the rejection order that the tender conditions cannot be relaxed and that the petitioners did not comply with the tender conditions; therefore, the tenders are rejected. 5. The respondent No. 2 did not reconsider the case within 7 days, stipulated by the court; therefore, the petitioners filed the present petitions. It is the case of the respondent No. 2 that the order of rejection was passed on 16.12.2013 and the present writ petitions were filed on 17.12.2013. The order of rejection came to be produced by the respondent No. 2, on 24.3.2013. 6. The counsel for the petitioners in all the cases submitted the following ground to assail the order of rejection : (1) The reasons stated for rejection of tender are untenable. (2) The DIG Certificate produced by the petitioners vide Annexure 2 series at page 101 of list of documents submitted by the petitioners, which forms part of Annexure 2, which is extracted hereinbelow: "CERTIFICATE" This is to certify that M/s. Pitambra Books (P.) Ltd., is situated at B-95, Industrial Area Bijoli, Jhansi, U.P., which is mentioned under memorandum section 2, SI. No. 00753 certified and issued by the District Industries Centre. The above mentioned firm is involved in the printing and production of Text Books/Work Books/Exercise Books and Note Books since year 2001. The firm has a fleet of modern high speed Web Offset and Sheet Fed Printing Machines for performing multi colour printing jobs. No. 00753 certified and issued by the District Industries Centre. The above mentioned firm is involved in the printing and production of Text Books/Work Books/Exercise Books and Note Books since year 2001. The firm has a fleet of modern high speed Web Offset and Sheet Fed Printing Machines for performing multi colour printing jobs. The firm has a daily production/Printing capacity of 25,00,000 Sheets/Forms of size 23*36 Inch according to the information provided by the Firm. The Printing and Supply work done by the firm in the previous 3 financial years are mentioned below: Financial yearTextbook/Workbook/Exercise Book/Notebook Printing and Production details (Approximate Figures as per the information provided) 2010-11 2011-12 2012-1372199106 95195881 48074338 7. In the light of the said certificate, it is submitted that the respondent No. 2 has grossly erred in not properly appreciating the said certificate, which clearly shows that the petitioners are not merely a printer and publisher, but manufacturers and it fulfills the conditions of a manufacturers. The quantity of production annually is also stated in the certificate, which clearly establishes that the petitioners had the requisite capacity of manufacturing and supplying the needed quantity of books. 8. The standard specification of sample to be submitted was 21cm x 28cm of 10 numbers. The petitioner had supplied the sample measuring 22cm x 27cm, obviously, it does not conform to the requirement, however, it is argued that the tender bid of respondent No. 3, which was accepted, shows that the said tenderer also did not supply the sample to the needed specification and it had supplied the sample with a measurement of 21cm x 28.2cm. It was argued that a marginal difference of 1cm and excess of .2cm from the sample may not make much difference in its quality and its utility for its use by the students. It is argued that the tender was not even rejected on that ground. 9. With regard to the samples, the tenderers had supplied the printed books, which were printed and published for Sarba Siksha Abhiyan of the State of Uttar Pradesh. 10. Sri Saikia, Additional Advocate General strenuously contended that the sample, which is furnished in the first place does not contain the brand name of the bidder, secondly, the sample that is required to be furnished should conform to the bulk that is required to be supplied. 10. Sri Saikia, Additional Advocate General strenuously contended that the sample, which is furnished in the first place does not contain the brand name of the bidder, secondly, the sample that is required to be furnished should conform to the bulk that is required to be supplied. In this case, the samples of Note Books and Work Books are the subject-matter of supply. Therefore, the samples of Note Books and Work Books have not been furnished, but sample of Text Book is furnished. The said sample does not fulfill the requirement of compliance and does not enable the authority for proper assessment of the quality and the requirement of the bulk that is needed to be supplied. 11. The counsel for the petitioner, per contra, submitted that the reason that the sample does not conform to the nature of bulk that is required to be supplied, was not one of the considerations for rejection of the lender. The tender has been rejected only on the ground that the brand name of the petitioners was not found on the sample. The rejection is for a frivolous reason. When the petitioners can publish a Text Book and when it is a manufacturer, there cannot be any difficulty for it to print a Note Book or a Work Book, since the work of manufacturing and printing of such Books would be easier task than the printing of Text Book. Therefore, the reason given for rejection is untenable in law. 12. Il is contended by the counsel for the petitioners that the financial bid of the respondent No. 3 with regard to all 5 tenders, which they quoted was in all Rs. 25,60,00,000 and the rate quoted by the petitioners was Rs. 14,97,00,000. The acceptance of tender of respondent No. 3, thus, really involved unnecessary and avoidable expenses of excess of public money to an extent of Rs.10,63,00,000. 13. For the above reasons, it was strenuously argued that the order of rejection to be set aside and the tenders of the petitioners be accepted. 14. On stern scrutiny of the facts and the materials submitted, it is to be held that the petitioners, in all the 5 tenders do fulfill the condition of being a manufacturer, its recorded capacity of printing as certified by the DIC, clearly discloses that it is capable of manufacturing and supplying of needed quantities. 15. 14. On stern scrutiny of the facts and the materials submitted, it is to be held that the petitioners, in all the 5 tenders do fulfill the condition of being a manufacturer, its recorded capacity of printing as certified by the DIC, clearly discloses that it is capable of manufacturing and supplying of needed quantities. 15. With regard to the samples that are submitted, the stipulations read as under : "Printing quality on the cover paper including inside should not be inferior than the official samples displayed in the Nazarat Branch. During bidding period, official Samples of the Evaluation and Practice Book will be displayed during office hours on working days in the Nazarat Branch of SSA for inspection of the prospective bidders. In addition to the sealed packets containing technical and commercial documents another 3 separate packets for 3 categories of samples as stated below must be submitted. All the 4 packets must mention the name in bold letters of the bidders clearly and must be bounded /tied together. Along with the technical bid, the bidders must submit 10 samples of the Exercise Books/Note Book of similar item such as Work Books, manufactured by the bidders, which should be similar as per the technical specification. The samples must be duly signed and stamped by the bidder. 20 samples of Text paper in full size and 20 samples of cover paper in full size as per the specifications mentioned under section VI :"Technical Specification" must be submitted with the Technical Bids duly signed and stamped by the Bidder. Bidders must submit 10 samples of books manufactured and supplied earlier under their own brand name of similar works executed by the Bidders." 16. It is further stipulated that the bidders must submit 10 samples of books manufactured and supplied earlier under their own brand name of similar works executed by the bidders. 17. The sample submitted by the petitioners do not pertain to Note Books and Work Books, the sample submitted is the. Text Books, that too, not manufactured and published in the brand name of the petitioners. After all, the insistence of supply of sample before acceptance of the contract is done to find out the quality of the sample, so as to assess whether the contractor would be able to supply the same quality of sample in bulk form. Text Books, that too, not manufactured and published in the brand name of the petitioners. After all, the insistence of supply of sample before acceptance of the contract is done to find out the quality of the sample, so as to assess whether the contractor would be able to supply the same quality of sample in bulk form. Whenever sample is insisted, the sample should relate to the nature of bulk that is required to be supplied. Here in the present case, the samples furnished by the petitioners are Text Books and different matter altogether and it does not conform to the bulk that is required to be supplied. It was argued that this was not the reason for rejection of the tender. However, the fulfillment of the tender conditions d and its legal implications are mixed question of law and fact, merely because the authority had not assigned accurately all the noticeable reasons, does not, however, preclude the court from assessing the case of the petitioners to find out whether its tenders fulfill all the substantial requirements of the tender. 18. In that view of the matter, the sample supplied not being the fulfillment of the tender conditions, therefore, rejection of the tender requires to be upheld. It is further to be noted that the respondent No. 5 was permitted to supply for a period of one week from the date of order in earlier writ petition. The respondent No. 3 continued to supply and it is the case of the respondent No. 2 that the respondent No. 3 has supplied all the required quantity of books in 45 days and only the final payment is withheld because of the pendency of the writ petitions. Since the contract is already executed by the respondent No.3, it is at this belated stage, the request of the petitioners cannot be considered. 19. Accordingly the writ petitions are dismissed.