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2019 DIGILAW 1295 (GAU)

Maa Manasha Printers v. State of Assam

2019-11-27

NELSON SAILO

body2019
JUDGMENT : Nelson Sailo, J. Heard Mr. J. Roy, learned counsel for the petitioner and Mr. D. Saikia, learned Senior Standing Counsel, Agriculture Department, assisted by Mr. B. Choudhury, learned Standing Counsel, Agriculture Department for the respondents. 2. The petitioner before this Court is the sole Proprietor of a registered firm under the name and style 'M/s Maa Manasha Printers' and engaged in the business of executing various types of printing and supply works under the Government and Semi-Government Department of the State as well as the Central Government. The Directorate of Agriculture Department, Government of Assam invited Expression Of Interest (EOI) for empanelment of firms for publicity works under the Directorate vide EOI No. Agri/Info/Tender-352/2018-2019/24/179 dated 08.07.2019 providing that the time period for downloading the EOI will be from 2:00 p.m. of 10.07.2019 and the last date and time for submission of EOI will be 31.07.2019 at 3:00 p.m. Interested bidders were required to download the tender documents from the website as per schedule given in Section-1 of the Critical Data Sheet. Group wise proposal should comprise a technical offer only in a properly sealed and signed enveloped and deposited in the Tender Box. The technical offer was to be opened on 31.07.2019 at 3:00 p.m. in the Office of the Assistant Director of Agriculture and it was to be evaluated based on the qualification of the offers and presentation. It was further provided that only offers found to be fit and responsive will be considered from Group wise empanelment of the firms. The scope of the work in the EOI and evaluation criteria were provided under Section-VII (Group A & B) and Section-VIII of the EOI. 3. The petitioner being interested purchased/downloaded the tender documents and after carefully going through the same, decided to participate under Group-A and accordingly, submitted the tender. To the knowledge of the petitioner, altogether 15 firms participated for Group-A while 5 firms participate for Group-B. As per the EOI, the minimum marks fixed as the Bench Mark for qualifying in the technical bid was 70 marks and from where, 80% weightage will be given towards the technical score. As regards the financial score, 20% weightage will be given and the participating bidders will be selected for awarding the contract. 4. As regards the financial score, 20% weightage will be given and the participating bidders will be selected for awarding the contract. 4. To the knowledge of the petitioner, a Meeting was held on 19.08.2019, which reviewed the particulars submitted by the bidders and a comparative statements of the bidders for Group-A & B was prepared. Altogether, 15 firms from Group-A and 4 firms from Group-B were found to be eligible. After the technical evaluation, only 6 bidders under Group-A were found to be technically qualified including the petitioner. According to the petitioner, only 1 bidder i.e. Gyanam, a joint venture firm could score above 80 marks i.e. 87.29 while the rest of the qualified bidders could score in between 70 to 75 marks. The petitioner scored a total 74.36 marks. Thereafter, in continuation of the earlier advertisement, the Director of Agriculture, Assam invited the financial/price bid requiring the eligible bidders to submit their financial bid online in the portal concerned within 10.10.2019 up to 2:30 p.m. Further, as per the Critical Date Sheet of the financial bid, the date and time for downloading of the bid was fixed as 26.09.2019 from 2:00 p.m. and the last date and time for submission of bid was 2:30 p.m. of 10.10.2019. Bids were to be opened on the same day at 3:00 p.m. in the Office of the Assistant Director of Agriculture, Assam, Khanapara, Guwahati-6. 5. In the general terms and conditions of the financial bid under Clause-9, it was stated that in case there was any query/suggestion etc., regarding bid conditions/specifications etc., it should be submitted 7 (seven) days prior to the last date of submission of the bid so that the representation of the bidder may be well processed and decision taken in time. Under Clause-15 of the financial bid, it was also stated that based on 80% weightage on technical score and 20% weightage on the financial score, participating bidders will be selected for awarding contract as depicted in clause (c) and (d) of Section-VIII of the bid documents of the EOI dated 08.07.2019. The petitioner accordingly downloaded the financial bid and perused the detailed terms and conditions of the bid price. The petitioner accordingly downloaded the financial bid and perused the detailed terms and conditions of the bid price. On going through the financial bid, the petitioner was not clear with certain conditions and as such, as per the terms and conditions mentioned in the financial bid, more particularly in Clause-9 of the bid, the petitioner decided to submit a representation before the authority i.e. respondent No. 3, seeking certain clarifications relating to financial bid. 6. However, despite submitting the representation, the respondent authorities did not give any response and under compelling circumstances, the petitioner submitted the financial bid quoting the rate online still having doubts. After the rates were submitted, the same was evaluated and the petitioner was declared to be L-1 in two (2) items i.e., Folder (Designing, Printing and Supply, Half Crowm, 210 GSM, 3 Fold, Multicolored) and Agricultural News Magazine (Designing, Printing and Supply, Half Crown, 100 GSM Art paper, 12 pages, Multicolored). The authority uploaded the result sheet on 14.10.2019 in its website through e-Procurement System, Government of Assam. Thereafter, the Departmental Bid/Tender Committee meeting was held on 16.10.2019 in the Conference Hall of the Directorate of Agriculture Department where on the basis of 80% weightage in the technical score and 20% weightage in the financial score, the ranks of participating empanelled firms were given. The Meeting Minutes of the Tender Committee was uploaded in the website on 23.10.2019 where the petitioner was ranked as No. II under the item Folder (Serial No. 2) and item Agriculture News Magazine (Serial No. 5). The petitioner was ranked II although in both these items, the petitioner was earlier marked as L-1. The petitioner being aggrieved submitted a Legal Notice dated 24.10.2019 (Annexure-9) to the Director of Agriculture, Assam, pointing out irregularities and wrong committed while floating the technical bid as well as financial bid. However, no response was made from the authority concerned. 7. Mr. J. Roy, learned counsel for the petitioner submits that when the final mathematical calculation was done as depicted in the EOI, the authority wrongly calculated and found the rank of the petitioner under item (Folder) at rank No. II despite having already marked the petitioner to be L-1. This is because the authority on its own has taken the rate exclusive of the tax, which otherwise do not find any mention either in the technical bid or in the financial bid. This is because the authority on its own has taken the rate exclusive of the tax, which otherwise do not find any mention either in the technical bid or in the financial bid. The EOI and the financial bid mentions that 80% weightage to technical score and 20% weightage to financial score will be taken for ranking the participants for their empanelment. In the absence of any mention about the calculation to be done exclusive of the tax, Mr. J. Roy, learned counsel submits that the authority concerned could not have made the calculations in the manner it was done. In fact, it amounts to pick and choose and also indicates vested interest. 8. Mr. J. Roy, the learned counsel further submits that from the affidavit-in-opposition filed by the respondents, one of the firms, who participated i.e. M/s F.M Printers had quoted 18% as GST and the same was corrected by the respondent authorities at 12%, which is not permissible in view of the relevant instructions and restrictions given in the EOI. Referring to paragraph No. 11 of the affidavit-in-opposition, the learned counsel submits that the respondents maintain that while calculating the weightage on quoted price, GST has not been included and only the basic price including the GST was considered in view of the fact that GST is only a variable and it cannot be different for different bidders. Therefore, irrespective of inclusion or exclusion of GST, the results will be the same. Mr. J. Roy, learned counsel submits that such stand of the respondents cannot be accepted since there is absolutely no mention in the tender condition that GST will be included. Since the financial bid is done online, the bid made by each of the participating Firms is calculated through software, wherein, once the data is entered, the system makes the calculation and the same cannot be changed. Based on the instruction in the tender documents, the petitioner Firm submitted its financial bid was accordingly declared as L-1. Therefore, the same cannot be changed or altered as was done by the respondents. The learned counsel also submits that it was only after the filing of the affidavit-in-opposition that the petitioner came to learn about the rectification made by the respondents. 9. Mr. Therefore, the same cannot be changed or altered as was done by the respondents. The learned counsel also submits that it was only after the filing of the affidavit-in-opposition that the petitioner came to learn about the rectification made by the respondents. 9. Mr. J. Roy, learned counsel for the petitioner submits that although the petitioner responded to a number of items in the tender that was floated, the petitioner restricts his claim only in respect of the item at Serial No. 2 i.e., Folder - Designing, Printing and Supply. He submits that despite the fact that the petitioner was L-1 as per the comparative statement prepared for the financial bid but the respondents by ignoring the tax component made the evaluation and came to the conclusion that one of the participating firm i.e., F.M Printers scored the highest marks and the petitioner scored the second highest marks in respect of the item at Serial No. 2. Thus, the respondents having resorted to a process not provided by the EOI as well as the General Terms and Conditions of the tender, they are liable to be directed to reconsider the financial bid made by the respective bidders, exclusive of the GST or in the alternative, a fresh EOI with valid terms may be directed to be issued. The learned counsel in support of his submission relies upon the following authorities :- (i) Mohinder Singh Gill & Anr. Vs. Chief Election Commissioner, New Delhi & Ors., (1978) AIR SC 851. (ii) W.B State Electricity Board Vs. Patel Engineering Co. Ltd. & Ors., (2001) 2 SCC 451 . (iii) Dutta Associates Pvt. Ltd Vs. Indo Merchatiles Pvt. Ltd. & Ors., (1997) 1 SCC 53 10. Mr. D. Saikia, learned Senior Standing Counsel by referring to the affidavit-in-opposition filed by the respondent No. 3 at the outset submits that the writ petition is not maintainable due to non-joinder of necessary parties. The petitioner has not impleaded the parties, who were successful in the tender process and in whose favour supply orders have already been issued by the Directorate of Agriculture. Therefore, the writ petition on this ground may be dismissed. Mr. D. Saikia further submits that the query made by the petitioner through the representation dated 03.10.2019 was received by the Directorate on 04.10.2019 only. Therefore, the writ petition on this ground may be dismissed. Mr. D. Saikia further submits that the query made by the petitioner through the representation dated 03.10.2019 was received by the Directorate on 04.10.2019 only. Under Clause-9 of the General Terms and Conditions of financial bid documents, the queries are to be submitted 7 (seven) days prior to the submission of the bid, i.e. 10.10.2019. However, despite the petitioner's representation being time barred, the query raised by the petitioner was clarified on 04.10.2019 itself over phone. Further, verbal clarification was also made later on. He submits that nowhere in the tender documents had it been provided that the clarification has to be made in writing and it was in fact very clear that only unit price was invited as per the BOQ format in respect of all the items as the Directorate was not equipped with sanctioned fund. 11. Mr. D. Saikia, learned Senior Standing Counsel submits that the respondent authority concerned never declared the petitioner as L-1 in the item Folder and Agricultural News Magazine since a final decision was to be taken only after evaluating the respective weightage of the firms on the basis of what was provided in the bid documents i.e., 80% weightage on the technical score and 20% weightage on the financial score. He further submits that while calculating weightage on the quoted price, GST was not included but only the basic price without GST was considered. This was because GST is only a variable and it is evident from the fact that Government of India on a number of occasions had reviewed the rate of GST ever since it was introduced. The learned Senior Standing Counsel further submits that the evaluation of the tenders has been done on the basis of Quality Cost Based System (QCBS), which is by now a widely accepted criteria to make evaluation of bids. The said method is adopted so that the quality of the product is not compromised while the cost of the product is equally taken into account. The participating Firms are required to make a presentation of the concept and design and based on which appropriate weightage on the quality of the concept and designs are looked into while also giving due weightage on the price bid. The participating Firms are required to make a presentation of the concept and design and based on which appropriate weightage on the quality of the concept and designs are looked into while also giving due weightage on the price bid. Therefore, when the said criteria has been followed in respect of all the participating Firms, the petitioner cannot have any legitimate grievance and as such, the writ petition should be dismissed. In support of his submission the learned Senior Standing Counsel relies upon the decision of the High Court of Gujarat, in the case of Premierworld Technology Ltd. v. Porbandar Nagarpalika & Anr., 2016 SCCOnLine(Guj) 8984. The learned Senior Standing Counsel has also produced the relevant records of the case. 12. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record including the record produced by Mr. D. Saikia. 13. Since the petitioner confines the claim only in respect of the item at Serial No. 2 i.e., Folder - Designing, Printing & Supply, consideration of this Court is restricted only to the said item. From the case being projected, the issue to be considered is as to whether the respondent authority concerned could have made the assessment of the financial bid by excluding the GST. As per the evaluation criteria provided in the EOI, the participating firms are required to score a minimum 70 marks in order to be considered for empanelment. After the evaluation of the technical bids based on the laid down criteria, financial rates are to be invited from those firms, who have scored 70 marks or more. 80% weightage will be given to the technical score while 20% weightage will be given to the financial score to the participating bidders. Based on the total score obtained both in technical and financial, the bidders will be selected for awarding contract. The Model Final Evaluation formula as provided in the EOI at Section-VIII(d) may be abstracted below for ready perusal:- "Section-VIII (d) Model Final Evaluation (for reference only) Sl.No. Name of Firm Technical Score (T) 80% of T (X) Financial rate quoted in % (F) Lowest Financial rate (Fm) Financial score calculated on 100 points (Sf) (Sf=100 X Fm/F) 20% of Sf (Y) Total score (X+Y) Rank 1. A 90.00 72.00 Rs.10.00 Rs. 8.00 80.00 16.00 88.00 L1 2. B 80.00 64.00 Rs. A 90.00 72.00 Rs.10.00 Rs. 8.00 80.00 16.00 88.00 L1 2. B 80.00 64.00 Rs. 8.00 100.00 20.00 84.00 L2 3. C 70.00 56.00 Rs.10.00 80.00 16.00 72.00 L3 14. From the above abstract, it may be seen that there is no mention about inclusion or exclusion of GST in the financial rate quoted by the participating Firm. From the records produced by the learned Senior Standing Counsel, there are several columns provided to be filled up in the financial bid format such as the basic rate quoted, the GST amount, any other taxes, the total amount without taxes and the total amount with taxes. As already stated herein above, the EOI does not specifically provide for the calculation on the financial score to be with or without GST. It is the case of the respondents that the actual amount quoted by the participating Firms without GST was taken into account for making the calculation as per the formula abstracted herein above. The adopted formula is common for all the participating Firms and under the circumstance, it cannot be said that the respondent authorities have taken into account the procedure not provided in the EOI. Further, the modification of the quoted percentage of the GST is irrelevant since GST quoted by the participating Firms was not taken into account. Another aspect of the matter which cannot be ignored is that the petitioner has not impleaded the Firm, which was placed at ranked No. 1 despite knowing the fact that from the Meeting Minutes dated 16.10.2019, the petitioner was found to have scored the second highest mark only. Therefore, the writ petition is also bad for non-joinder of necessary party as well. 15. Now coming to the authorities relied upon the learned counsel for the petitioner. In Mohinder Singh Gill & Another (Supra), the Apex Court held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. This was because an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. This was because an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. There can be no dispute with the said proposition laid down by the Apex Court, but in the instant case, as already noticed herein above, the respondent authority concerned has not accounted the GST not only in respect of the petitioner but in respect of all other firms who participated. There is also no mention about the inclusion and exclusion of the GST in the EOI and therefore, the case referred to by the learned counsel for the petitioner is found to be not applicable. In W.B State Electricity Board (Supra), the Apex Court held that the degree of care required in case of a comparative bidding is greater than in ordinary local bids for small works. Adherence to the instructions cannot be given a go-by by branding it as a pedantic approach, otherwise it will encourage and provide scope for discrimination, arbitrariness and favouritism which are totally opposed to the rule of law and our constitutional values. In Dutta Associates Pvt. Ltd. (Supra), the Apex Court reiterated that whatever procedure the Government proposes to follow in accepting the tender, the same must be clearly stated in the tender notice. In other words, the procedure should be transparent, fair and open. The authorities relied upon by the petitioner in my considered view does not have application to the present case for the reasons already stated herein above. Moreover, similar criteria has been adopted in respect of all the other items and therefore, there cannot be a different consideration in respect of Item No. 2 against which the petitioner stakes a claim. 16. Thus upon considering the case in its entirety, I do not find the petitioner to have any legitimate grievance and the writ petition being devoid of any merit, the same is dismissed. No cost.