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Meghalaya High Court · body

2018 DIGILAW 67 (MEG)

Hanumanbux Umadutt v. Union of India

2018-10-03

S.R.SEN

body2018
JUDGMENT : 1. WP(C) No.246/2018 and WP(C) No.247/2018 are taken up together for hearing as the issues are the same in both the cases. 2. The brief facts of WP(C). No. 246/2018 is as follows: “This is an application under Article 226 of the Constitution of India for issuance of a writ in the nature of mandamus and/or certiorari and/or any other writs/orders/directions etc., of like nature, assailing the discriminatory, unreasonable and arbitrary actions of the Respondent authority in technically disqualifying the Petitioner in respect of the bids submitted by the Petitioner pursuant to the Notice Inviting Tender dated 11.05.2018 for procurement of Cloth Shirting Flannel SG for Assam Rifles, Shillong. Being aggrieved by such unreasonable, bias and arbitrary action of the Respondent authority in technically disqualifying the Petitioner without any justifiable reasons, the humble Petitioner is approaching this Hon’ble Court for redressal of his genuine grievances.” The brief facts of WP(C) No. 247/2018 is as follows: “This is an application under Article 226 of the Constitution of India for issuance of a writ in the nature of mandamus and/or certiorari and/or any other writs/orders/directions etc., of like nature, assailing the discriminatory, unreasonable and arbitrary actions of the Respondent authority in technically disqualifying the Petitioner in respect of the bids submitted by the Petitioner pursuant to the Notice Inviting Tender dated 25.05.2018 for procurement of Cloth Shirting Flannel SG for Assam Rifles, Shillong. Being aggrieved by such unreasonable, bias and arbitrary action of the Respondent authority in technically disqualifying the Petitioner without any justifiable reasons, the humble Petitioner is approaching this Hon’ble Court for redressal of his genuine grievances.” 3. Learned counsel for the petitioners submits that the Director General of Assam Rifles (Respondent No. 2) published a Notice Inviting Tender (for short NIT) dated 11-05-2018 and 25-05-2018. Accordingly, in WP(C) No 246 of 2018, the petitioners submitted their tenders for both the Technical bids and Financial bids which were opened on the same date i.e. 08- 06-2018. The respondent authority rejected the Technical bids of the petitioners on 12-07-2018 as updated in the status of the Tender Summary Report dated 22-07-2018 which is at Annexure-4 page 115 of the writ petition and also rejected the Financial bids of the petitioners vide Tender Summary Report dated 22-07-2018. The respondent authority rejected the Technical bids of the petitioners on 12-07-2018 as updated in the status of the Tender Summary Report dated 22-07-2018 which is at Annexure-4 page 115 of the writ petition and also rejected the Financial bids of the petitioners vide Tender Summary Report dated 22-07-2018. In WP(C) No. 247/2018 the petitioners submitted their tenders for both the Technical bids and Financial bids which were opened on the same date i.e. 19-06-2018. The respondent authority rejected the Technical bids of the petitioners on 19-07-2018 as updated in the status of the Tender Summary Report dated 19-07-2018 which is at Annexure-4 page 116 of the writ petition and also rejected the Financial bids of the petitioners vide Tender Summary Report dated 19-07-2018. 4. Learned counsel for the petitioner also contended that the petitioners on being informed by the respondents that their tender has been rejected and found technically disqualified and thereafter, petitioner approached the respondent authority with a representation seeking reasons of the ground for rejection of the bids, but respondents failed to give any reason. 5. Learned counsel further contended that the technical bid was rejected without any reasonable ground. He also submits that as per Clause 30(d) (iii) of the NIT, validity of the EMD must be 45 days beyond the final bid validity period of 180 days and petitioners have submitted the Earnest Term Deposit with a validity of 180 days only against the required validity of 225 days as per requirement of the terms and conditions of the NIT and referred to page 4 of the affidavit-in-opposition. His contention was that the term deposit receipt will automatically renew after every maturity period of six months. He further contended that earlier also, there was some deficiency but even though, the petitioner’s case was considered. 6. On contra, Mr. N. Mozika, learned CGC on behalf of the respondent authority submits that in the past also the bids of the same firm were rejected in various other tenders due to similar reasons. He further submits that the Earnest Term Deposit shall be valid for 225 days as per Clause 30 (d) (iii) of the NIT and two bidders also were rejected on the ground that their EMD was not valid for 225 days. He also submits that tender process is through online system only, first the technical bids then the commercial bids. 7. Mr. He also submits that tender process is through online system only, first the technical bids then the commercial bids. 7. Mr. B.P. Todi, learned Sr. counsel for the respondent No. 3 in WP(C). No. 247/2018 submits that on 19-06-2018 the technical bids was opened and validated as per the terms and conditions of the NIT and the tender bids was found not in compliance with the terms and conditions of the NIT. He also relied on the judgment and order dated 26-09-2018 passed by this Court in WP(C). No. 121/2018. 8. After hearing the submissions advanced by the learned counsels for the parties as referred above and on perusal of the record in hand and especially the additional affidavit on behalf of the respondents, it appears that the petitioners failed in bidding at the stage of technical bidding as they could not fulfil the requirement of the NIT under Clause 30(d)(iii). It also appears that the petitioners submitted their term deposit dated 15-07-2018 of the State Bank of India, Shillong with a validity of 180 days only against the required validity of 225 days as per the terms and conditions of the NIT and on the same ground, some other firms were also rejected. 9. After evaluation of the submissions as well as the records before me, I am of the considered view that the mistake cannot continue once it is detected. In the judgment and order dated 26-09-2018 passed in WP(C). No. 121/2018, this Court made it clear what are the criteria generally to be fulfilled by both the invitee of the tender as well as the supplier. Paragraph, 7, 8 and 9 of the said judgment is reproduced herein below for ready reference:- “7. After perusal of the case records of WP(C) No. 121/2018 and WP(C) No. 122/2018 and the submissions advanced by the learned counsels, I am of the considered view that NIT is the ground for tender and both the parties are bound by the terms and conditions of the NIT. Secondly, on principle, though the lowest bidder should get the tender, but it does not mean that the lowest bidder will supply the lowest quality of goods. Thirdly, invitee of the tender must select the bidder without any favour or disfavour considering the eligibility of past experience and capacity to supply the quality of goods. 8. Secondly, on principle, though the lowest bidder should get the tender, but it does not mean that the lowest bidder will supply the lowest quality of goods. Thirdly, invitee of the tender must select the bidder without any favour or disfavour considering the eligibility of past experience and capacity to supply the quality of goods. 8. However, it does not mean that the new growing up firms who have not supplied earlier and does not have the past experience can be rejected only on that ground alone if otherwise, they fulfill all the terms and conditions of the NIT. 9. I am of the further view that while choosing the bidder, it is the invitee of the tender who will be the best person to select the eligible bidder as per terms and conditions of the NIT and no discrimination should be done to anyone.” 10. In both the instant cases, I find that petitioners have failed to fulfil the requirement of the NIT as prescribed in Clause 30(d)(iii) of the NIT. Since the technical bid is invalid, in my view respondents are right to reject the tenders of the petitioners. 11. Accordingly, WP(C) No. 246/2018 and WP(C) No. 247/2018 are dismissed by this common judgment and order and stands disposed of. Interim stay order passed earlier is hereby withdrawn.