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Gauhati High Court · body

2018 DIGILAW 873 (GAU)

PUL PUL MANUFACTURE v. STATE OF ASSAM

2018-05-29

PRASANTA KUMAR DEKA

body2018
JUDGMENT AND ORDER : 1. Heard Mr. K Goswami, learned counsel for the petitioner. Also heard Mr. BD Konwar, learned Senior Counsel assisted by Ms. S Newar and Mr. B Kaushik, learned Standing Counsel appearing for the respondents No. 2 and 3. 2. The petitioner is a proprietor firm carrying out its business under the name and style of M/S Pul Pul Manufacture. The respondent No. 3 i.e. the Mission Director, Rashtriya Uchchatar Siksha Abhiyan (for short, RUSA), Government of Assam vide its Memo No. RUSA/E-Procurement/135/2017/377 on 31.07.2017 invited 4 short e-tender through e-procurement portal (Technical Bid and Financial Bid) from the reputed firms/ manufacturers etc for supply of furniture at Pandit Deen Dayal Upadhyaya Model Degree College at Behali, Amjonga, Dalgaon, Eraligo (Science), Assam for a quantity of 4 (four) packages. The petitioner along with others, in all six bidders participated in the said tender process. Technical bids for all the said 4 NITs were opened on 18.08.2017 at 3 P.M. in the office of the Mission Director, RUSA, Kahilipara at Guwahati and only 2 bidders i.e. respondents No. 4 and 5 were found to be technically fit as per the terms of the conditions of the said NIT dated 31.07.2017. The technical bid of the petitioner firm was rejected on the ground that the firm has not submitted minimum turnover audited financial balance sheet, PPF registration, Compliance Certificate and all items partially quoted. The petitioner submitted all the documents which are alleged not to have been submitted both in the hard copies, soft copies and also in the CD although at the time of uploading the same in the website, the same did not get uploaded due to some technical problem in the system/ website for no fault of the petitioner. The price bid was also opened at the second half on 18.08.2017 and the respondents No. 4 and 5 were selected and work orders were subsequently issued to the said respondents on 21.08.2017. 3. The learned counsel for the petitioner submits that the selection of the respondents No. 4 and 5 are liable to be quashed and set aside for favouritism shown by the respondent State towards respondents No. 4 and 5 though they ought to have been technically disqualified. 3. The learned counsel for the petitioner submits that the selection of the respondents No. 4 and 5 are liable to be quashed and set aside for favouritism shown by the respondent State towards respondents No. 4 and 5 though they ought to have been technically disqualified. All the documents were not sealed and signed by the authorised representatives, variation in TIN of respondent No. 5, selection done at a very high price well above the prevailing market value. Accordingly, it is the contention of the learned counsel for the petitioner that the entire selection process is sham one to favour the respondents No. 4 and 5 inasmuch as the price bids of the present petitioner was much lesser than the one quoted by the private respondents. There being no transparency in the public procurement, the tender process cannot be allowed to remain at the whims and caprices of the respondents No. 2 and 3. For the said reason, the petitioner sought for declaring the bids of the respondents No. 4 and 5 to be technically ineligible and to rescind and recall from giving effect to the decision of awarding the contract of supply of furniture to the said respondents through appropriate writ (s). 4. Mr. Goswami submits that on 31.07.2017, NIT was issued, on 11.08.2017 the technical bids were opened, on 18.08.2017 sitting of the technical committee took place wherein the petitioner was disqualified, the price bids were opened on 19.08.2017 and the respondents No. 4 and 5 were found L-1 and L-2. Thereafter, on 21.08.2017 a complaint was lodged against the disqualification of the present petitioner and later on, the present writ petition was filed on 30.08.2017. On 06.09.2017, this court passed the order after hearing the prayer for interim relief as follows:- ".... Considering the controversy involved in this case, it is hereby provided that the respondent may go ahead with the supply at their risk and cost, which would be subject to the outcome of the writ petition. However, no payment would be released in favour of respondent Nos. 4 and 5 until the next date. Records be produced by the learned Govt. Advocate on the next date fixed facilitating disposal of the writ petition at the admission stage. However, no payment would be released in favour of respondent Nos. 4 and 5 until the next date. Records be produced by the learned Govt. Advocate on the next date fixed facilitating disposal of the writ petition at the admission stage. List again on 20-09-2017." It is further submitted that as per the bidding instruction in the NIT, Clause 4 stipulates that soft copy of technical bid in document or documents format must also be submitted in a CD along with the technical bid, in addition to the hard copies. Quotations not accompanied by soft copy will be rejected. Clause 6 stipulates that all tender forms and supported documents are to be submitted through E-procurement site and all the bids must be digitally signed only except some of the documents which were specifically mentioned. As per the qualification criteria it is stipulated that the bidder has to quote for all the items in the tender as a package and the comparative statement will be made as a package only and the bidders who do not quote for all the items as per the given tender specification are to be disqualified. The bidder must have supplied Steel and Wooden furniture of similar nature of minimum value of Rs. 30,00,000/- during the last 3 (three) financial years through MNCs of repute/ IITs/ NITs/ Central or State department for which the bidder must submit the work order, supply copy and the completion certificate. The bidders who do not meet the criteria including the one as aforesaid along with others are to be disqualified. 5. The tender committee as per its minutes of the purchase committee for technical bid selection meeting on 18.08.2017 came to the finding that five number of firms including the petitioner firm participated in the five packages and the said five number of firms submitted hard copies as sought for and uploaded the technical bids in the E-procurement website. After examining the hard copies and technical bids submitted online the comparative statement for each college against the participating firms were prepared. In compliance of the terms and conditions and qualification criteria in the tender, the respondents No. 4 and 5 fulfilled all the terms and conditions and approved both the firms by the purchase committee as technically qualified. After examining the hard copies and technical bids submitted online the comparative statement for each college against the participating firms were prepared. In compliance of the terms and conditions and qualification criteria in the tender, the respondents No. 4 and 5 fulfilled all the terms and conditions and approved both the firms by the purchase committee as technically qualified. The petitioner is disqualified in the technical bid as it failed to submit minimum turn over audited financial balance sheet, PPF registration and compliance certificate and all items were partially quoted. 6. Mr. Goswami submits that all the documents which were submitted in the hard copies, the soft copies and also in the CD are similar, but at the time of uploading the documents in the website, the same did not get uploaded fully due to some technical problem in the system for no fault of the petitioner. For the said reason, the purchase committee in the technical bid selection came to the finding that the petitioner did not submit the aforesaid documents and accordingly disqualified it. The said disqualification, as per Mr. Goswami, is illegal, arbitrary and unreasonable. It is his contention that the hard copy is to be submitted only at the request of the department. As the same was requested and submitted by the petitioner, the respondent department ought to have considered the said documents which were very much on record in the hard copy and in the CD. There is no such clause that if there is any deficiency in supplying the hard copy, the same would be a disqualification on the part of the bidder. Thus, Mr. Goswami wants to project that the hard copy is the backup of the soft copy and in the event of a situation as the one faced by the petitioner, all the documents which are available with the hard copy must be considered by the department. 7. Mr. Konwar opposing the submission of the learned counsel for the petitioner, submits that the decision making process of the tender committee cannot be faulted at this stage by the petitioner. Once the technical bid was rejected the petitioner was supposed to raise its objection against such rejection of the bids instantly before the price bid was opened. 7. Mr. Konwar opposing the submission of the learned counsel for the petitioner, submits that the decision making process of the tender committee cannot be faulted at this stage by the petitioner. Once the technical bid was rejected the petitioner was supposed to raise its objection against such rejection of the bids instantly before the price bid was opened. However, the same was not done and the petitioner allowed the tender committee to take decision which the tender committee has accordingly taken thereby alloting the work orders to the respondents No. 4 and 5. The respondents keeping in view the public interest involved in the said supply order without any fail supplied the furniture as per the terms and conditions and to the full satisfaction of the purchaser. That cannot be a ground to support the claim of the petitioner that the whole tender process was carried out in order to give undue benefits to the respondents No. 4 and 5. Pointing to the NIT dated 31.07.2017, Mr. Konwar submits that in the said notice itself it has been clearly and specifically mentioned that the department will not be liable for delay in submission of tenders and system errors, if any. Such indication in the form of expressed manner itself goes to show that the soft copy is necessary consisting of the various quotations along with documents relating to the qualifying criteria as required under the terms and conditions of the NIT. Referring to Clause 4 of the bid of instruction, Mr. Konwar submits that quotations not accompanied by the soft copy will be rejected which itself indicates that the whole tender process being E-tender, the soft copy ought to be submitted to the full satisfaction of the tender committee and admittedly the petitioner failed to upload the soft copy as required under the terms and conditions of the tender. Referring to the conditions of E-tender, Clause C of the NIT, Mr. Konwar, further submits that it is stipulated that the bidders must complete bid submission of online tender system otherwise their bids will not be available during online tender opening. Again referring back to the clause that the documents submitted online need to be submitted separately on hard copy if requested by the department, Mr. Konwar submits that the hard copy is optional until and unless, the department sought for it. Again referring back to the clause that the documents submitted online need to be submitted separately on hard copy if requested by the department, Mr. Konwar submits that the hard copy is optional until and unless, the department sought for it. As the tendering system is online, whatever bids and the documents supporting qualification criteria of a bidder must have its entry into the portal and such entry must have its similarity with the hard copy. Moreover, it has been specifically mentioned in the said condition for E-tendering that the financial bid must be submitted online only. This clause itself shows that the department shall give stress on the soft copies which are to be uploaded and not on the hard copies as claimed by the learned counsel for the petitioner. 8. Considered the submission of the learned counsel for the parties. The Notice Inviting Short E-Tender through E-Procurement portal in two bid system (Technical Bid and Financial Bid) issued by the respondent No. 2 dated 31.07.2017 specifically mentions that the department will not be liable for delay in submission of tenders and system errors, if any. In the bid instruction therein Clause 4 stipulates that soft copy of technical bid in doc or docx form must also be submitted in a CD along with the technical bid in addition to the hard copies. Quotations not accompanied by the soft copy will be rejected. Further in the conditions for E-tender, Clause (C) stipulates that bidders must complete bid submission of online tender system otherwise their bids will not be available during online tender opening. It is further stipulated therein that the financial bid must be submitted online only. In the technical bid selection meeting of the Purchase Committee dated 18.08.2017, as per resolution, the present petitioner was disqualified as it has not submitted minimum turnover, audited financial balance sheet, PPF registration, compliance certificate and all items partially quoted. It is seen from the said resolution further that in the concerned group of five numbers and overall six numbers of participating firms submitted hard copies as sought for uploading the technical bids in the E-procurement website and thereafter examining the hard copies and technical bids submitted online, the comparative statement of each colleges against the participant firms have been prepared and by the said resolution, the respondents No. 4 and 5 were approved as technically qualified. 9. Mr. 9. Mr. Goswami terms the said non-consideration of the hard copy to be intentional on the part of the respondent No. 2 for favouring the respondents No. 4 and 5. His contention is that as the respondent No. 2 sought for the hard copies, the same ought to have been considered inasmuch as there must be certain specific intent on the part of the respondent No. 2 in asking for the hard copy for examining the qualifying criteria of the various participants. The said submission cannot be accepted inasmuch as no reason (s) are spelled out as to why the hard copy was sought for so far the technical bid is concerned. Merely non-consideration of the said hard copy cannot be attributed as reasons for showing favouritism to the respondents No. 4 and 5. In Sam Built Well Private Limited v. Deepak Builders and Others reported in (2018) 2 SCC 176 , the Honble Apex Court held as follows:- "10. Having heard the learned counsel for both the parties, it is important to set out the parameters for judicial review in cases like the present one. In a similar case, namely, Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd. at pp. 825-26, Para 4.2 (a) of Section III of the tender conditions in that case again spoke of a certain minimum number of "similar contracts" as previous work experience. The question before this Court was whether an inter-State high speed railway project could be similar to metro civil construction work. After laying down the parameters of judicial review and referring to various judgments for the same, this Court held: "15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given. 16. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given. 16. In the present appeals, although there does not appear to be any ambiguity or doubt about the interpretation given by NMRCL to the tender conditions, we are of the view that even if there was such an ambiguity or doubt, the High Court ought to have refrained from giving its own interpretation unless it had come to a clear conclusion that the interpretation given by NMRCL was perverse or mala fide or intended to favour one of the bidders. This was certainly not the case either before the High Court or before this Court." 10. From the said ratio it can be concluded that the employer of a project having authored the tender documents is the best person to understand and appreciate its requirements and interpret its documents. Under the present situation, on one hand the tender is E-procurement tender and the financial biddings are directed to the bidders to quote online and the intent of asking the hard copies by the employer respondent No. 2 of the technical bids cannot be considered to be the backup for a person similarly situated as that of the petitioner there being no express stipulation supporting the submission of the learned counsel of the petitioner. Further, as referred hereinabove in the NIT dated 31.07.2017 the employer i.e. the respondent No. 2 had declared that the department will not be liable for any system errors and the case of the present petitioner is that while uploading the technical bids there was error in the system and the complete data could not be made online which is admitted fact and on the face of such pleading the case of the petitioner does not lie at all. So, in view of the said condition stipulated in the NIT, I am of the opinion that the decision of the Purchase Committee cannot be held to be unreasonable and arbitrary while disqualifying the present petitioner. 11. The other limb of the contention of Mr. So, in view of the said condition stipulated in the NIT, I am of the opinion that the decision of the Purchase Committee cannot be held to be unreasonable and arbitrary while disqualifying the present petitioner. 11. The other limb of the contention of Mr. Goswami that the respondent No. 2 favoured the respondent No. 5 as the TIN issued by the Sales Tax department against Value Added Tax (VAT) which did not tally with the various supply orders mentioned in the qualifying bid and though the same was pointed out by the petitioner, on the mere explanation by the respondent No. 5 that the said variation was due to typographical error, the same was accepted wilfully to favour the respondent No. 5. 12. Mr. Konwar refers to the re-joinder affidavit by the respondent No. 5 filed on 24.11.2017 wherein the respondent No. 5 states that there was a minor printing error in the invoice but the TIN and CST numbers were allotted to the respondent No. 5 and in support of his contention Mr. Konwar took this court to the invoice of the bill which are annexed along with the said re-joinder affidavit and submits that similar explanation was put before the respondent No. 2 and the said explanation was accepted and as such the submission of the learned counsel for the petitioner has no force at all. 13. In Michigan Rubber (India) Limited v. State of Karnataka and others (supra), the Honble Apex Court after considering various decisions on the aspect of the judicial review laid down the principles which is reproduced hereinbelow:- "23. From the above decisions, the following principles emerge: (a) The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities; (b) Fixation of a value of the tender is entirely within the purview of the executive and the courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by courts is very limited; (c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of the tendering authority is found to be malicious and a misuse of its statutory powers, interference by courts is not warranted; (d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and (e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by court is very restrictive since no person can claim a fundamental right to carry on business with the Government. 24. Therefore, a court before interfering in tender or contractual matters, in exercise of power of judicial review, should pose to itself the following questions: (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached"? and (ii) Whether the public interest is affected" If the answers to the above questions are in the negative, then there should be no interference under Article 226." 14. From the aforesaid principles, it is the duty of this court before exercising judicial review of the decision making process of the purchase committee to see as to whether decision made by the authority is mala fide or intended to favour someone and whether the said process is arbitrary and irrational owing to which public interest is affected. The quotation of the wrong TIN in support of the performance as required for the qualifying criteria, the respondent No. 5 explained before the purchase committee against the objections raised by the present petitioner. The reasonings were accepted. Admittedly, the learned counsel for the petitioner has argued that merely on the submission by the respondent No. 5 that the said error in the TIN was unintentional rather, a typographical error was accepted which is to favour the respondent No. 5. The reasonings were accepted. Admittedly, the learned counsel for the petitioner has argued that merely on the submission by the respondent No. 5 that the said error in the TIN was unintentional rather, a typographical error was accepted which is to favour the respondent No. 5. As against the re-joinder affidavit by the respondent No. 5, no objection has been raised nor anything contrary to the stand taken by the respondent No. 5 could be produced by the petitioner. Under such circumstances, to my considered opinion, that submission of Mr. Goswami also fails as it is an admitted fact that the said explanation of the respondent No. 5 was accepted by the purchase committee and until and unless the acceptance of the said explanation of the respondent No. 5 of typographical error referred hereinabove is irrational, this court as the court under Article 226 will be slow to interfere with such decision of the purchase committee. 15. The third contention of Mr. Goswami that knowing fully well that the writ petition is pending, the respondent No. 5 without awaiting disposal of the present writ petition, completed the supply order in a hurried manner before interference by this court in the work order issued to it. On the other hand, Mr. Konwar submits that the work has been completed in the public interest moreso, when the petitioner has approached this court belatedly. It is true that after opening of the technical bid, the petitioner without raising any objection instantly before the price bid was opened, had filed this writ petition on 29.08.2017 after the work order was issued to the respondents No. 4 and 5 on 21.08.2017. Further, on 18.08.2017 after opening of the technical bid wherein the petitioner firm was disqualified in the next half of 18.08.2017 itself, the price bid was also opened and thereafter the work order was issued on 21.08.2017. In the interim period prior to opening of the price bid no objection was raised by the present petitioner. Admittedly, the petitioner in his writ petition has stated that after coming to know about the anomalies in the selection process he raised the complaint on 21.08.2017 before the purchase committee. From the submission of the learned counsel, I am of the opinion that there was a delay on the part of the petitioner in raising the objection. Admittedly, the petitioner in his writ petition has stated that after coming to know about the anomalies in the selection process he raised the complaint on 21.08.2017 before the purchase committee. From the submission of the learned counsel, I am of the opinion that there was a delay on the part of the petitioner in raising the objection. Even then, at the motion stage this court passed an order that the respondents may go ahead with the supply at their risk and cost and the payment was directed not to be released in favour of the respondents No. 4 and 5. From the aforesaid discussions, it is concluded that there was no unreasonableness in the decision making process of the purchase committee under the respondent No. 2 when the petitioner failed to upload the qualifying criteria in the requisite portal. Accordingly, delivery of materials by the respondents No. 4 and 5 cannot be considered to be one of the factors to come to a conclusion that the decision making process of the purchase committee was arbitrary and unreasonable rather, I am inclined to accept the submission of Mr. Konwar, the learned Senior Counsel that the materials were supplied keeping in view of the public interest involved therein. This writ petition is dismissed. 16. Interim order passed on 06.09.2017 stands vacated.