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2017 DIGILAW 1057 (GAU)

Uma Prasad Upadhyaya v. State of Assam

2017-08-07

SUMAN SHYAM

body2017
JUDGMENT AND ORDER (Oral) : 1. Heard Mr. B.J. Talukdar, learned counsel for the writ petitioner. Also heard Mr. D. Nath, learned Additional Senior Government Advocate, Assam, appearing for respondent Nos.1 to 3. Mr. M.J. Baruah, learned counsel appears for respondent No.4. 2. The dispute in this writ petition pertains to the decision of the authorities to award the contract under NIT dated 04.02.2017 in favour of the respondent No.4. 3. The facts of the case, briefly stated, is that the respondent No.2 had issued an e-tender notice dated 04.02.2017 inviting bids for execution of the work, viz., “Supply for Dietary articles for the Jails of Assam during the Financial Year 2017-18”. The tender process was a two bid system wherein the bidders were required to submit their technical and financial bids separately. In response to the said e-tender notice, the writ petitioner as well as the respondent No.4 had both submitted their bids. As per requirement of the tender notice, the bids were also submitted in hard copy. The technical bids of the writ petitioner and the respondent No.4 were opened on 28.02.2017 whereafter, the matter was placed for evaluation by the Departmental Purchase Committee (DPC). The DPC had conducted evaluation of the technical bids and a decision was taken on 16.03.2017 to technically qualifying both the writ petitioner as well as the respondent No.4. 4. As per the tender conditions, only the bidders whose bids were found to be technically valid would be considered for evaluation of the financial bids. Accordingly, on 23.03.2017 the financial bids of the petitioner and the respondent No.4 were opened whereafter, it was found that the respondent No.4, having quoted a price of Rs.26456600/-, had emerged as the lowest bidder whereas the writ petitioner became the second lowest bidder on the basis of his offered price of Rs.27051780/-. Since the bid of the respondent No.4 was the lowest, hence, a decision was taken to award the work in favour of the respondent No.4. 5. Mr. Talukdar submits that the respondent No.4 is admittedly a partnership concern. As such, as per the tender document, all the partners of the firm were required to sign the tender documents. In case the tender documents are signed by one of the partners, then, also the signature must appear in all pages and the same must be accompanied by either a power of attorney or an authorization letter. As such, as per the tender document, all the partners of the firm were required to sign the tender documents. In case the tender documents are signed by one of the partners, then, also the signature must appear in all pages and the same must be accompanied by either a power of attorney or an authorization letter. By inviting the attention of this Court to Clause 1(e) of the tender document, Mr. Talukdar submits that from the materials available on the e-portal it was found that the respondent No.4 did not comply with clause 1(e) of the tender document as a result of which its technical bid was defective and was liable to be rejected on such count alone. However, by ignoring such material defect the technical committee had accepted the technical bid of the respondent No.4 as a result of which immense prejudice has been caused to the interest of the petitioner. 6. Mr. D. Nath, learned Additional Senior Govt. Advocate, Assam, has produced the records to demonstrate that the signature of the partner of the respondent No.4 firm appears in all the pages of the documents submitted by the said firm. Mr. Nath further submits that material on record would go to show that the other two partners of the respondent No.4 firm had executed an authorization letter in favour of “Tamanna E Rosul, the partner of the firm to represent it in the matters of Government tender and the said document was also very much available with the authorities. Under the circumstances, submits Mr. Nath, there was compliance of clause 1(e) of the tender documents. 7. Urging that the plea of the writ petitioner besides being devoid of merit was also barred by the principles of waiver and estoppels Mr. Nath submits that although the DPC had evaluated the bids on 16.03.2017 and the result was made known to the writ petitioner on the said date itself, yet until 05.04.2017 no objection was filed by the petitioner against the result of the technical evaluation. He submits that the financial bid was opened on 23.03.2017 and it is only after the petitioner realized about weak footing that he stands that the instant writ petition has been filed with an oblique motive of frustrating the tender of the respondent No.4. 8. Mr. He submits that the financial bid was opened on 23.03.2017 and it is only after the petitioner realized about weak footing that he stands that the instant writ petition has been filed with an oblique motive of frustrating the tender of the respondent No.4. 8. Mr. M. J. Baruah, learned counsel for the respondent No.4, has also supported the submission advanced by the learned Government Advocate and further submits that there was no ground for rejection of the technical bid submitted by the respondent No.4. As such, submits Mr. Baruah the writ petition is without any merit and therefore, deserves to be dismissed with cost. 9. I have considered the submissions advanced by the learned counsel for the parties and have also gone through the materials available on record. 10. As noticed above, the only ground on which the award of the contract in favour of the respondent No.4 has been assailed is that it did not fulfil the requirement of Clause 1(e) of the tender document. Clause 1(e) of the tender document is quoted herein below for ready reference :- “1.(e) The person or persons signing the tender shall state that in what capacity he/she/they are signing the tender. If an individual submits a tender, it shall be signed with his full name and designation and his address shall be given. If it is submitted by a firm, it shall be signed by all the partners of the firm or by a partner of the firm duly empowered or authorised to do so and the authorisation/Power of Attorney should be enclosed.” 11. A perusal of the records produced by the departmental counsel goes to show that one of the partner of the firm, viz., Tamanna E Rosul, had not only put the seal and signature of the respondent No.4 firm in all the pages of the Tender documents but an authorisation letter issued by the remaining two partners of the firm in his favour was also available on record. Under the circumstances, the plea raised by the writ petitioner that the technical bid of the respondent No.4 was deficient of Clause 1(e) of the tender document is found to be devoid of any merit and accordingly stands rejected. 12. Under the circumstances, the plea raised by the writ petitioner that the technical bid of the respondent No.4 was deficient of Clause 1(e) of the tender document is found to be devoid of any merit and accordingly stands rejected. 12. A perusal of the materials on record also goes to show that although the technical bid of the respondent No.4 was held to be responsive on 16.03.2017, yet, no objection was raised by the petitioner until 05.04.2017 i.e. till such time the price bids were opened. If the petitioner had any genuine grievance, the same ought to have been raised before the authorities at the stage of evaluation of the technical bid which was not done in the present case. 13. In the case of Central Coalfields Limited and Others vs. SLL-SML (Joint Venture Consortium) and Others, reported in (2016) 8 SCC 622 , the Hon’ble Supreme Court has categorically held that he decision to accept or reject a particular bid should be looked into not only from the point of view of the unsuccessful bidder but also from the point of view of the employer. It has further been observed that whether a clause in the NIT is essential or not is a matter that should be left to the discretion of the employer. In the present case, the writ petitioner has questioned the decision of the authorities to accept the technical bid of the respondent No.4 but for the reasons indicated herein above, the said challenge of the petitioner is found to be unsustainable on merits in view of the materials produced before the Court. 14. For the reasons stated above, this writ petition is held to be devoid of any merit and the same is accordingly dismissed. No order as to cost. Records be returned.