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2015 DIGILAW 789 (GUJ)

Devkishan Computer Pvt. Ltd. v. State of Gujarat

2015-08-11

JAYANT M.PATEL, RAJESH H.SHUKLA

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JUDGMENT : Jayant M. Patel, J. 1. The present petition is preferred by the petitioner for challenging the action of the respondent No. 2 to grant contract to respondent No. 3 and it has been further prayed that the action of respondent No. 2 in not awarding contract to the petitioner be declared as arbitrary. We may record that pending the petition, as the information was given by the respondent No. 2 that the contract was given to respondent No. 3, respondent No. 3 is joined as the party. However, when this Court entertained the matter for the first time on 6.5.2015, the decision was not taken to grant contract to respondent No. 3 but on 4.6.2015 after filing of the petition and the entertainment of the petition by this Court, the decision was taken. 2. The short facts of the case appears to be that the tenders were invited for providing services of the Supervisor, Computer Programmer, Data Entry Operator, Electrician Staff at 11 RTO Check Posts Across the State of Gujarat. One of the conditions of the tender was that it shall be the responsibility of the bidder to abide by the provisions of the Labour Welfare Legislation. The petitioner is one of the person who submitted the tender with other tenderer. In the offer of the tenderer, the bifurcation about the liability to pay wages by following the Labour Welfare Legislation was also required to be given. In the technical examination of the tender, the offers of three persons, viz., the petitioner, respondent No. 3 and one Bakshi Security were found to be technically qualified. The price bid was opened and at the price bid, following offers were found of the respective tenderer: It appears that as per the above referred offer, the petitioner was L1, whereas one Bakshi Security was L2 and respondent No. 3 was L3. In spite of the same, as the petitioner realised that the tender of the petitioner is not accepted, the present petition was preferred. As observed earlier, after filing of the present petition and after entertainment of the present petition, by order dated 6.5.2015, subsequently, on 4.6.2015, the decision has been taken by respondent No. 2 to award contract to respondent No. 3 who was L3. Hence, the petitioner has amended the petition and respondent No. 3 is joined as party. As observed earlier, after filing of the present petition and after entertainment of the present petition, by order dated 6.5.2015, subsequently, on 4.6.2015, the decision has been taken by respondent No. 2 to award contract to respondent No. 3 who was L3. Hence, the petitioner has amended the petition and respondent No. 3 is joined as party. It was also stated by the learned AGP during the course of the hearing that after the letter of intent dated 4.6.2015, the agreement is entered into on 23.7.2015, but actual work pursuant to the agreement is not started. It is at that stage, we are required to consider the matter further. 3. We have heard Mr. N.D. Nanavati, learned Counsel appearing for the petitioner, Mr. Patel, learned AGP for respondent Nos. 1 and 2 and Mr. Viral Shah for respondent No. 3 for final disposal of the matter. 4. On the aspect of inviting tender, submission of tender, technical qualification of above referred three tenderers, there is no dispute. It is also admitted position that thereafter, price bid of above referred three tenderer were opened and the above referred quoted prices were submitted by the respective tenderer. It is also undisputed position that the petitioner was L1, whereas the respondent No. 3 was L3. The difference between the price quoted by L1, i.e., petitioner and L3, i.e., respondent No. 3 who has been granted contract is about Rs. 29,00,000/-. 5. It is hardly required to be stated that after the bid of each of the tenderer is found to be technically qualified and at the opening of the price bid, the competitive offer received of the lowest tenderer, normally, should be accepted because those who are clothed with the power of taking appropriate decision for utilisation of the public money have to act in a manner which may result into lowest expenses on the basis of the nature of work and the subject of the contract. 6. The attempt on the part of the learned AGP was to contend that after the price bids were opened, the department had forwarded the papers for the opinion and remarks of Labour Department of the State Government to work out about the liability to be discharged by the tenderer towards compliance of the Labour Welfare Legislation. 6. The attempt on the part of the learned AGP was to contend that after the price bids were opened, the department had forwarded the papers for the opinion and remarks of Labour Department of the State Government to work out about the liability to be discharged by the tenderer towards compliance of the Labour Welfare Legislation. As per the learned AGP, the figure quoted by L1, i.e., the petitioner, was much less in comparison to the minimum liability to be discharged as against the same and so was the position for L2 and so far as L3 is concerned, the amount quoted by L3 could be said as meeting with the compliance of the Labour Welfare Legislation. He submitted that the report was considered by the committee and thereafter, the decision is taken to award the contract to respondent No. 3. 7. The learned AGP has not been able to show any condition of the tender about the verification of the figure quoted in the tender with the opinion of the Labour Department for compliance of Labour Welfare Legislation. Further, it is not at the time of technical evaluation of the tender, the tender of the petitioner came to be rejected. But after opening of the price bid, again technical evaluation is made of respondent No. 2 and, thereafter, the decision is taken. It is true that the attempt should be made on the part of the competent authority to finalise the tender by accepting the competitive rates and there are also certain inbuilt discretion, but at the same time, after opening of the price bid, if as per the respondent No. 2 it was found that the amount quoted towards liability for payment of salary and others to the employee was not meeting with the requirement of Labour Welfare Legislation as per the opinion of the Labour Department, then also when it was not specified in the tender condition, the opportunity was required to be given to all tenderer to meet with the said aspect and after considering their reply or the explanation, as the case may be, the decision could have been taken. It is hardly required to be stated that in the submission of the tender, the commercial wisdom of each tenderer would be of relevance. It is hardly required to be stated that in the submission of the tender, the commercial wisdom of each tenderer would be of relevance. It is not necessary that in every case, the tenderer may earn profit nor it can be said that the tenders are submitted only for suffering losses, but at the same time, such could be gathered only if opportunity was given by giving equal treatment to all the tenderer. Instead of that, on one-sided manner, the decision has been taken to give contract to the respondent No. 3 which in our view can be said as arbitrary. Considering the importance of the work of the tender, we find that the matter can again be considered by respondent No. 2 by giving opportunity to L1, L2 and L3 and thereafter, a fresh decision may be taken. In the event it is found that the tender of respondent No. 3 cannot be accepted, the letter of intent already issued and the agreement already entered into pending the petition would be inconsequential. 8. In view of the aforesaid observations and discussions, following order: "(1) The impugned decision of accepting the tender of respondent No. 3 is quashed and set aside with the further direction that respondent No. 2 shall give opportunity to L1, L2 and L3 in response to the opinion received by the Labour Department about the compliance of the Labour Welfare Legislation and the amount quoted towards wages and other benefits. After opportunity is given to L1, L2 and L3, they should be at the liberty to negotiate the prices already offered and, thereafter, the respondent No. 2 shall take appropriate decision in accordance with law. (2) The aforesaid exercise shall be completed within a period of one month from the receipt of the order of this Court." The petition is allowed to the aforesaid extent. Disposed of accordingly. Considering the facts and circumstances, no order as to costs.