JUDGEMENT AND ORDER : 1. Heard Mr. A. Kalita, learned counsel appearing for the petitioners. Also heard Mr. B. Gogoi, learned Standing counsel, Soil Conservation Department, appearing for respondent Nos. 1 and 2 as well as Mr. A. K. Baruah, learned counsel appearing for respondent No. 3. 2. The petitioner No. 1 is a private limited company of which the petitioner No. 2 is the Director. By this writ application, the petitioners have called into question the work order dated 26.12.2017, issued by the Director of Soil Conservation, Assam, to the respondent no. 3 herein allotting the contract works pursuant to an E-Tender Notice (hereinafter referred to as the “NIT”) dated 23.10.2017. 3. The Director of Soil Conservation, Assam, issued the NIT for the works of repairing and renovation of the Directorate office building of the Soil Conservation Department. The estimated value of the works was Rs. 29,00,000.00 (Rupees twenty-nine lakhs). The details of the NIT were made available in the designated web portal of the Department of Soil Conservation. A Press Release was also made in respect of the NIT in The Assam Tribune, an English Daily, dated 24.10.2017. Tenders were invited in two-bid system: (i) technical bid and (ii) financial bid. Financial bids were to be opened in respect of those tenderers whose tenders were found technically responsive. The last date for submission of tender was fixed on 06.11.2017 at 2-00 P.M. and the bid opening time and date was fixed at 2-30 P.M. On 06.11.2017. The date or time for opening of the financial bid was not notified in the time schedule of the NIT. 4. It appears that ten tenderers had submitted their tenders and four tenderers, including the petitioner and the respondent No. 3, had qualified in the technical bid. By an e-mail dated 18.11.2017, the petitioners were informed that petitioner No. 1’s technical bid had been accepted on technical evaluation and that opening of the financial bids was fixed on that very date at 1-15 P.M. 5. By an e-mail dated 18.11.2017, the petitioners were informed that petitioner No. 1’s technical bid had been accepted on technical evaluation and that opening of the financial bids was fixed on that very date at 1-15 P.M. 5. The case of the petitioners, as projected in the writ petition, is that neither any information was made available to the petitioners about the status of the financial bid as well as of the work till middle of December, 2017 despite a number of visits to the office of the respondent No. 2, nor there was any updating and/or uploading of information in the eprocurement portal of the respondent authorities with regard to the financial bid. However, on 18.12.2017, on a visit to the office of the respondent No. 2, the petitioner No. 2 came to learn that a work order in respect of the NIT in question had been issued to the respondent No. 3 and, other than that information no further information was divulged to the petitioners. Faced with such a predicament, the petitioners submitted an application on 20.12.2017 under Right To Information Act, 2005 (for short “RTI Act”) before the Special Public Information Officer (SPIO), Office of the Director of Soil Conservation, Assam, seeking information about the financial bids as well as the work order issued in the subject tender. Subsequent thereto, information was furnished to the petitioners that the petitioner company had emerged as the lowest bidder. Having possessed such information, with the grievance that the petitioners had illegally been deprived of the contract work, the petitioners had earlier approached this Court by filing a writ petition under Article 226 of the Constitution of India, which was registered as WP(C) 174/2018. The said writ petition was disposed of on 12.01.2018, at the motion stage itself, by directing the respondent No. 2 therein to furnish the petitioners with full and complete details as regards the manner in which financial bids of the parties had been evaluated and the reasons as to why the work was not awarded to the petitioner despite the low price quoted by the petitioner company. Pursuant to the said direction, on that very day, e-mails were sent to the petitioners, which revealed that as per the Tender Summary Report, the petitioner No. 1 was the lowest bidder. It was also informed that the contract work was awarded to the respondent No. 3 at Rs. 26,10,000.00. Pursuant to the said direction, on that very day, e-mails were sent to the petitioners, which revealed that as per the Tender Summary Report, the petitioner No. 1 was the lowest bidder. It was also informed that the contract work was awarded to the respondent No. 3 at Rs. 26,10,000.00. The e-mails sent on 12.01.2018, however, did not indicate the grounds for rejection of the bid of the petitioner. 6. Subsequently, a letter dated 22.01.2018 was issued to the petitioner by the Director of Soil Conservation stating that the work was allotted to the respondent No. 3 so as to maintain quality of work. In the said letter dated 22.01.2018, Bill of Quantity (BOQ) Summary was also indicated and, based on that, it is pleaded by the petitioner that although three tenderers, other than the petitioner, had quoted the same price, it is not explained on what basis respondent No. 3 was picked up for allotment of the work, the completion period of which was also reduced to 30 days from 75 days as notified in the NIT. 7. In the affidavit filed by the respondent No. 2, it is stated that in the technical bid evaluation, respondent No. 3 obtained 90 marks while the petitioner obtained 70 marks. It is also stated that the bid of the petitioner at 12.75% below the estimated value was the lowest and the bid of the respondent No. 3 at 10.00% below the estimated value was the second highest. The grounds for rejection of the bid of the petitioner, as stated at paragraph 8 of the affidavit, read as follows: “8. That as regards to the statements made in paragraph 7 of the writ petition, the deponent begs to state that in response to the Hon’ble High Court order dated 12/01/2018 in WP(C) No. 174/2018 the undersigned provided all the relevant information to the petitioner vide letter No. SC/HC-19/2017-18/7909 dated 22/01/2018. In this connection it is to mention here that after technical evaluation, 4 (four) nos. of bidders qualified for the financial evaluation. After financial evaluation it is seen that the petitioner i.e. Chilaray India Pvt. Ltd. offered 12.759908% below the work value and as such his bid rank became L1. On the other hand the respondent No. 3 i.e. Kalpa Singh Bordoloi offered the rate 10.00% below the estimated value and his bid rank is L2. After financial evaluation it is seen that the petitioner i.e. Chilaray India Pvt. Ltd. offered 12.759908% below the work value and as such his bid rank became L1. On the other hand the respondent No. 3 i.e. Kalpa Singh Bordoloi offered the rate 10.00% below the estimated value and his bid rank is L2. In spite of being the L1 the petitioner was not awarded the work for the following grounds: (i) The estimates for the concerned work have been prepared based on the Assam Public Works Department (APWD) schedule 2013-14 which is not revised till date. But price escalation of construction materials raised up to a great extent. Therefore, committee felt that contractor cannot execute quality work during 2017-18 as per the estimated rates based on APWD schedule of 2013-14. (ii) Again, the contractor’s profit @ 10% is kept while preparing the estimates. If contract is awarded more than 10% below rate then quality of work will suffer. (iii) On the other hand the tender committee had also taken a resolution in its meeting held on 12/04/2017 not to accept the rate beyond 10% below to maintain the quality of work. Which is also reflected in the minutes of the tender committee meeting held on 27/11/2017.” 8. It is further stated in the affidavit that the time period for completion of the contract was reduced to 30 days from 75 days as the work was required to be completed within the financial year. It is also averred that Financial Evaluation Summary (FES) was duly published in the Online Tendering Portal of the respondent department. In the affidavit filed on 19.02.2018, a technical evaluation statement showing allotment of marks in respect of the technical bids of the respective tenderers and an inspection report in respect of the work done by the respondent No. 3 are enclosed. 9. Respondent No. 3, in his affidavit, stated that the tender committee, in its meeting held on 12.04.2017, had adopted a resolution not to accept rate beyond 10% below the estimated rate as far as possible in order to maintain quality of work to be executed. It is stated that the petitioner could not have realistically maintained good quality of work at the rate offered by it. It is further stated that the financial bid of the petitioner was liable to be rejected under Clause 26(III) of Information to Bidders (ITB). It is stated that the petitioner could not have realistically maintained good quality of work at the rate offered by it. It is further stated that the financial bid of the petitioner was liable to be rejected under Clause 26(III) of Information to Bidders (ITB). It is pleaded that once the three responsive bids were found to be identical, the authorities took a decision to award the contract to respondent No. 3 in order to maintain the quality of work on the credentials of the respondent No. 3. It is stated that out of the 40 components of the works to be executed under the contract, the respondent No. 3 had already completed 100% work in respect of 11 components and the overall percentage of the progress of work, as on 07.02.2018, was 64.11%. Reference is also made to Clause 30(V) of the ITB to contend that the employer has the right to reject the bid if a successful bidder quotes absurd/unworkable rate for any item. The allegation made by the petitioner that the respondent No. 3 had been granted undue benefit is denied. 10. The petitioners filed reply-affidavits to the affidavits of both the respondent Nos. 2 and 3. 11. Mr. Kalita has submitted that when, admittedly, the petitioner No. 1 is the L1 tenderer, there could not have been any justification for not allotting the work to the petitioners. It is submitted by him that the purported reasons for allotment of the contract work in favour of the respondent No. 3 on the ground of ensuring “quality of work” is neither here nor there and such a ground, which militates against all cannons of distribution of State largesse, cannot legitimately enable the respondent authorities to allot the work order in favour of respondent No. 3. It is further submitted by him that there is no basis whatsoever to pick up the respondent No. 3 as successful bidder out of the three tenderers who had quoted identical rates. He submits that respondent No. 3 being a blue-eyed boy of the respondent authorities, undue favour had been bestowed on him. It is submitted by Mr. It is further submitted by him that there is no basis whatsoever to pick up the respondent No. 3 as successful bidder out of the three tenderers who had quoted identical rates. He submits that respondent No. 3 being a blue-eyed boy of the respondent authorities, undue favour had been bestowed on him. It is submitted by Mr. Kalita that after the technical bid had been uploaded in the web portal of the respondent authorities, the respondents became tight-lipped and no further information was made available in the web portal as a result of which the petitioner was kept completely in the dark regarding the developments that had taken place in the tender process. This had contributed to the petitioners’ somewhat delayed approach to this court, he submits. 12. Mr. Gogoi has submitted that the decision making process cannot be faulted with only because of the fact that the respondent No. 3 had been chosen to be allotted the work order in question. It is submitted by him that even before the opening of the technical bid, the Technical Evaluation Committee had opined not to accept any tender which falls 10% below the estimated rate and the same was done on the basis of a resolution adopted on 12.04.2017, which was long before issuance of the NIT in question. As the bid of the petitioner was lower by more than 10% of the estimated cost, it was opined that if the petitioner was allotted the work, quality of the work would be compromised and, hence, respondent No. 3 was selected. Elucidating the reasons for which the respondent No. 3 came to be selected out of the three tenderers, who had quoted the same rate, it is submitted by Mr. Gogoi that two other tenderers in the fray already had enough work which they were executing in the department and the committee, being aware of the volume of the work they had been executing, was of the opinion that if additional works are allotted to them, they may not be able to cope up with the volume of work and, therefore, the respondent No. 3 was selected. However, as the other two tenderers had not approached this court by filing writ petition expressing their grievance, if any, this aspect of the matter may not detain the court any further, he submits. However, as the other two tenderers had not approached this court by filing writ petition expressing their grievance, if any, this aspect of the matter may not detain the court any further, he submits. It is also submitted by him that periodical inspection was conducted with regard to the progress of the work and, by the time the interim order came to be passed, it was found that about 64% of the work on overall percentage basis had been completed by the respondent No. 3. 13. Placing reliance on the affidavit filed by respondent No. 3, Mr. Baruah has submitted that the respondent No. 3 had already completed 100% work in respect of the 11 items out of the 40 components of the works. He submits that substantial work had been completed by the respondent No. 3 and the decision making process cannot be held to be arbitrary and illegal and, therefore, it is not a fit case for interference with the work order in question in exercise of powers under Article 226 of the Constitution of India. It is submitted by him that the respondents did not commit any illegality while rejecting financial bid of the petitioner in terms of the resolution adopted on 12.04.2017 as the bid of the petitioner more than 10% below the estimated price. He has also placed reliance on Clause 30(V) of the ITB in this context. 14. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 15. Though submission is advanced by Mr. Kalita that the outcome of the financial bid and the work order had not been uploaded in the web portal of the respondent authorities, respondent No. 2 in his affidavit, though had stated that it had been uploaded, no date of such uploading is specifically mentioned in the affidavit. However, it is an admitted position that after the intervention of this court in the earlier round of litigation, the outcome of the financial bid as well as other details was made known to the petitioners. 16. In the technical bid evaluation statement, which is annexed as Annexure-F of the affidavit of respondent No. 2, different headings had been given for the purpose of allotment of marks, which is quantified at 100 marks. The petitioner is shown to have obtained 70 marks as against 90 marks obtained by respondent No. 3. 16. In the technical bid evaluation statement, which is annexed as Annexure-F of the affidavit of respondent No. 2, different headings had been given for the purpose of allotment of marks, which is quantified at 100 marks. The petitioner is shown to have obtained 70 marks as against 90 marks obtained by respondent No. 3. There is one tenderer who had secured 96 marks. The marks obtained by the respondent No. 3 in the technical bid evaluation is also recorded in the minutes of the meeting of the tender committee while it decided to accept the rate offered by the respondent No. 3. It will be apposite to quote the observation of the committee while accepting the rate of respondent No. 3. The same reads as under: “A: Soil Conservation Directorate, Assam, Guwahati. 1. The Tender Committee examined the comparative statement evaluated by the Evaluation Committee in respect of Repairing and Renovation of Soil Conservation Directorate Office Building of Soil Conservation Department, Assam, at R.G.B. Road, Guwahati-5 and following observations are found: (Value of work - Rs. 29.00 Lakhs) Out of total 10 (ten) number of tenderers participated in E-Tender process, 4(four) Nos. of tenderers qualified for financial evaluation, among them Kalpa Singh Bordoloi scored 90.0 marks in technical evaluation and the rate offered by him is 10% below the estimated rate. (Tender value : Rs. 26.00 lakhs) The Committee unanimously accepted the rate offered by him.” 17. The admitted position is that three tenderers, other than the petitioner, had quoted identical rates. There is no reflection in the decision of the tender committee as to why the committee had unanimously accepted the rate offered by the respondent No. 3 as noted above. If the marks obtained in technical evaluation was a relevant consideration, then also there was another tenderer who had secured 96 marks, which is more than the marks obtained by the respondent No. 3. The submission of Mr. Gogoi that the other two tenderers who had quoted rate similar to respondent No. 3 were over-burdened is not the pleaded case of respondent No. 2. It is another matter that they have not approached this court, but the fact remains that there is no clarity in the matter as to why respondent No. 3 had to be picked up for grant of allotment of the work in question. It is another matter that they have not approached this court, but the fact remains that there is no clarity in the matter as to why respondent No. 3 had to be picked up for grant of allotment of the work in question. So far as the tabulation of marks under different headings in the technical evaluation is concerned, on a specific query of the court, Mr. Gogoi, as usual, fairly submits that there is no indication anywhere, including in the ITB, about the marks to be assigned in respect of the individual components and it was done by the technical evaluation committee on its own. If that be so, the marks awarded in respect of the technical bid would have no role to play any further in the consideration of grant of allotment of work order after a tenderer is found to have been technically responsive. Admittedly, both the petitioner and respondent No. 3 had qualified in the technical bid evaluation. 18. It will be apposite, at this juncture, to reproduce the following portion of the minutes of the meeting of the tender committee held on 27.11.2017: “*** *** *** *** *** *** The Chairman of the Tender Committee welcomed all the members present and briefed about the meeting. The Member-Secretary of the said committee produced all relevant documents viz. (1) Tender Papers with comparative statements scrutinized by tender Evaluation/Scrutiny Committee of both Divisional level and Directorate of Soil Conservation, and after threadbare discussion the following tenders against the schemes were accepted by following all the existing financial rules and procedures. The Committee took the resolution not to accept the rate beyond 10% below the estimated rate as far as possible in order to maintain the quality of work.” 19. As reference has been made to another minutes of the tender committee meeting held on 12.04.2017, it will also be appropriate to take note of the relevant contents of the said minutes, which is as under: “* * * * * * * * * * * * * * * * * * The Chairman of the Tender Committee welcomed a the members present and briefed about the meeting. The Member-Secretary of the said Committee mentioned few important points regarding evaluation of Tender Papers. The Member-Secretary of the said Committee mentioned few important points regarding evaluation of Tender Papers. The Technical Expert i.e. the Divisional Soil Conservation Officer (Engineering) Division also briefed few important criteria to be given importance during Technical and Financial Evaluation process of the bid documents submitted by the Divisions and he forwarded a format for evaluation with markings at the respective items. All the members studied the format for comparative statement to be adopted at the Head quarter level and after threadbare discussion covering a the pros and cons involved in the process the following format (Enclosed herewith) was accepted by a the Members present. The Committee took the resolution not to accept the rate beyond 10% below of the estimated rate as far as possible in order to maintain the quality of works to be executed. The Committee unanimously accepted the above mentioned criteria to be adopted during evaluation process of the bid documents submitted by the bidders.” A perusal of the above quoted minutes indicates that the tender committee, in itsmeeting held on 12.04.2017 had taken a resolution not to accept the rate beyond 10% below the estimated rate as far as possible in order to maintain quality of the works to be executed. In the meeting of the tender committee held on 27.11.2017, there was no reference to the earlier minutes of the tender committee meeting held on 12.04.2017. The resolution adopted on 27.11.2017 not to accept the rate 10% below the estimated rate as far as possible was subsequent to the opening of the financial bids. 21. Respondent No. 3 in its affidavit had highlighted about the minutes of the meeting of the tender committee held on 12.04.2017. It is not explained as to how the respondent No. 3 had come to know about such resolution as it had not been circulated. In the NIT, there is no reflection that the tender committee will not accept any rate beyond a particular rate, i.e., below 10% of the estimated rate. Even otherwise, the resolution adopted itself indicates that the tender committee would not accept a rate beyond 10% below the estimated rate as far as possible and, therefore, it cannot be said that any rate beyond 10% below of the estimated rate had to be straightaway rejected. 22. Even otherwise, the resolution adopted itself indicates that the tender committee would not accept a rate beyond 10% below the estimated rate as far as possible and, therefore, it cannot be said that any rate beyond 10% below of the estimated rate had to be straightaway rejected. 22. A tender process has to be open and transparent and should not contain any hidden criteria to be adopted in the process which will culminate in award of the contract. If any resolution had been adopted long back not to accept any tender below 10% of the estimated rate, it was incumbent on the part of the respondent No. 2 to have made it clear in the NIT itself. Apparently, respondent No. 3 was aware of the said resolution adopted by the tender committee. How he came to know about it is another matter and this court may not embark upon a journey to find out the same. Fact remains that while the respondent No. 3 was privy to such hidden criterion, the petitioner was not. A level-playing field has to be afforded to all tenderers. If there was any doubt for any reason whatsoever with the rate offered by the petitioners or if the rate was, otherwise, not thought to be workable, then it was incumbent on the part of the tender committee to have required the petitioners to have satisfied it as to how such rate was workable. It is not for the tender committee to come to a conclusion, unilaterally, on its own notion, that the rate is unworkable. Clause 30(V) of the ITB, on which reliance is placed by respondent No. 3, is not attracted to the facts and circumstances of the case as the petitioner is not a successful tenderer. The said Clause applies to a successful tenderer whose tender could be rejected after his rate was found unworkable in respect of any item. Clause 26(III) of the ITB reads as follows: “III. If a ‘Financial Bid’ is not substantially responsive, it will be rejected by the Employer, and may not subsequently be made responsive by correction or withdrawal of the non-conforming deviation or reservation.” 23. Clause 26(II) of the ITB provides that a substantially responsive financial bid is one, which conforms to all the terms, conditions and specifications of the bidding documents without material deviation or reservation. Clause 26(II) of the ITB provides that a substantially responsive financial bid is one, which conforms to all the terms, conditions and specifications of the bidding documents without material deviation or reservation. A material deviation is one (a) which affects in any substantial way the scope, quality or performance of the works; (b) which limits in any substantial way, inconsistent with the bidding documents, the Employer’s rights or the bidder’s obligations under the contract; or (c) whose rectification would affect unfairly the competitive position of other Bidders presenting substantially responsive Bids. 24. So, a financial bid to be substantially responsive, has to conform to all the terms, conditions and specifications of the bidding document without material deviation or reservation. It is not the case of the respondents that the financial bid of the petitioner does not conform to all the terms, conditions and specifications of the bidding document. 25. In the minutes of the tender committee meeting held on 27.11.2017, there is no mention that the respondent No. 3 was allotted the work so as to maintain the quality of work. However, in the letter dated 22.1.2018 (Annexure G of the affidavit of respondent No. 2), it is indicated by the Director of Social Conservation that the tender committee had decided to allot the work to respondent No. 3 so as to maintain the quality of work. Wherefrom such an observation could be curved out from the minutes of the meeting of the tender committee dated 27.11.2017 can be explained only by the respondent No. 3 and none else. The events unfolded demonstrate that the respondent authorities adopted a hidden criterion to outwit the bid of the petitioners and, as such, I am of the considered opinion that the decision making process, which had relied upon such hidden criterion, cannot receive judicial imprimatur. 26. However, there is another aspect of the matter. The petitioner has not seriously disputed the progress of the work that had taken place in the meantime. While 11 (Eleven) items of work allotted to respondent No. 3 had been completed fully, no work had been started in respect of some items as reflected in Annexure-J of the affidavit filed by respondent No. 2. In rest of the items substantial work had been completed. 27. While 11 (Eleven) items of work allotted to respondent No. 3 had been completed fully, no work had been started in respect of some items as reflected in Annexure-J of the affidavit filed by respondent No. 2. In rest of the items substantial work had been completed. 27. Having regard to the above, I am of the considered opinion that it will not be in public interest not to permit the respondent No. 3 to complete the works in respect of items where substantial work had been done and, therefore, although the impugned order of settlement is liable to be interfered with for the reasons mentioned hereinbefore, the relief sought for by the petitioner should be appropriately moulded by permitting the respondent authorities to allow the respondent No. 3 to complete the works where work had been started and substantial portion completed. However, in respect of items of work, where no work at all had been started, as reflected in Annexure-J of the affidavit of respondent No. 2, it will be wholly inequitable not to award the petitioner, who, in the first place, ought to have been allotted the entire contract work, the said items of work. 28. Accordingly, balancing the competing equities, while setting aside the impugned order of settlement dated 26.12.2017, issued in favour of respondent No. 3, the respondent No. 3 is permitted to continue to work in respect of the items in respect of which works have been undertaken but not completed. The respondent No. 2 is directed to issue a work order expeditiously in favour of the petitioners allotting the items of work where no work had been started by the respondent No. 3 indicating the time period for completion of the same. 29. It is also made clear that notwithstanding the setting aside the impugned work order, the respondent No. 3 shall be entitled for payment in terms of his quoted rates for the items fully executed and to be completed by him in terms of this order. 30. Writ petition is disposed of in terms of the above. No cost.