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Gauhati High Court · body

2020 DIGILAW 621 (GAU)

Ranjit Baruah v. State Of Assam

2020-07-20

ACHINTYA MALLA BUJOR BARUA

body2020
JUDGMENT Achintya Malla Bujor Barua, J. - Heard Mr. S. Sarma and Mr. A Gautam, learned counsel for the petitioner. Also heard Mr. D. Saikia, learned senior counsel assisted by Mr. B Gogoi, learned counsel for the respondents in the Health Department of the Govt. of Assam. 2. The petitioner who is an intending bidder to the notice inviting tender (E-tender) dated 23.06.2020 of the Principal cum Chief Superintendent, Assam Medical College & Hospital, Dibrugarh (in short AMCH) is aggrieved by a subsequent corrigendum dated 27.06.2020, also issued by the Principal-cum-Chief Superintendent AMCH, by which Point No. 19 of Annexure-1 to the bidding document as well as Clause 15(d) thereof are sought to be modified in the manner provided therein. Further the word ''similar health institute'' appearing in the original bidding document is sought to be modified to be read as ''similar institution''. 3. The relevant extract of Clause 15 of the original bidding document is extracted as below: wxyz 15. Documents Comprising the Bid zyxw wxyz The bids prepared by the bidder shall comprise of (1) Technical Bid and (2) Financial Bid (to be uploaded in the prescribed BOQ) zyxw wxyz Technical Bid: To qualify in the Technical bid the firm should have the minimum eligibility criteria as under and the firm in this regard must submit the following documents in support of their eligibility criteria zyxw wxyz Duly filled format of Technical Bid as Annexure-I zyxw wxyz The bidder shall be a dietary service provider having valid license, Financial status: zyxw wxyz The turnover for providing dietary service in Hospital/Similar Health Institution of the firm should not be less than Rs.3.00 Crore in the last 3 (three) years. Copies of profit & loss account and balance sheets duly authenticated by a Govt. Registered Chartered Accountant for the last three years should be enclosed. zyxw wxyz Experience of similar nature of work of 03 years or more. Similar nature of work means supplying diet services in a hospital/similar health institution on daily basis with a minimum occupancy of 500 persons. zyxw wxyz (j) The bidder must have adequate experience of execution of similar work in Govt. offices/PSUs/Autonomous Bodies and other similar organizations. Necessary supporting documents like work orders, work completion certificate, payment certificate etc for last three years to this effect must be submitted along with the offer. zyxw wxyz (j) The bidder must have adequate experience of execution of similar work in Govt. offices/PSUs/Autonomous Bodies and other similar organizations. Necessary supporting documents like work orders, work completion certificate, payment certificate etc for last three years to this effect must be submitted along with the offer. zyxw wxyz The provision of Point No. 19 of Annexure-1 to the original bidding document is extracted as below: zyxw wxyz 19. Proof of financial status in form of audited balance sheet for the last three financial years. Average annual turnover must be at least Rs.2.00 crore. zyxw 4. The modification brought in by the corrigendum dated 27.06.2020 is extracted as below:- wxyz " A per discussions in the meeting held on 25/06/2020 & 27/06/2020, the following corrigendum/addendum have been issued for outsourcing of dietary service to the impatient AMCH, Dibrugarh which was published vide this office e-Tender notice No. MCH/2020/8065 dtd. 22/06/2020 & ID No.2020-HFWD 18029-1 zyxw wxyz Corrigendum zyxw wxyz Please read Annexure-I point No.19 as: The turn over for providing dietary service in Hospital/similar Institution of the firm should not be less than 3.00 Crore in the last 3 (three) years instead of average annual turnover must be atleast 2.00 Crore. zyxw wxyz Please read Point No.15(d) as: Experience of similar nature of work of 03 years or more. Similar nature of work means supplying diet services in Govt. hospital/similar institutions/PSU/Autonomous Bodies/Govt. Offices/Similar Organizations on daily bases within a minimum occupancy of 500 persons/ patients and above, but the firm must have a capacity to feed 1500 (fifteen Hundred persons/patients per day throughout the year because the bed capacity of AMCH is 1700 Nos. zyxw wxyz Please read the word similar Health Institution as Similar Institution in the tender document. zyxw wxyz Please ignore page No.31 & 32 which was published mistakenly." zyxw 5. As apparent from Clause 15(c) of the original bidding document, the eligibility requirement was that the turnover of the bidder for providing dietary services in hospital/similar health institution should not be less than Rs.3 Crore in the last 3 years and to substantiate the same, the profit and loss account and balance sheet authenticated by the Govt. Registered Chartered Accountant be submitted. Registered Chartered Accountant be submitted. But however the Annexure-I, which is the technical bid format that was enclosed along with the bidding document, in Point No. 19, required the proof of financial status in the form of an audited balance sheet for the last financial year, where the average annual turnover be at least Rs.2crores. Apparently there was an inconsistency between the provision of Clause 15(c) of the bidding document and Point No. 19 of the Annexure-I technical bid format. By the modification brought in by the corrigendum dated 27.06.2020, the inconsistency stood removed and the modified Point No. 19 of the Annexure-I technical bid format would now require that the turnover of the bidder should not be less than Rs. 3 crores for the last 3 years. The said modified provision in the corrigendum as regards Point No. 19 of the Annexure-I technical bid format now stands consistent with the provision of Clause 15(c) of the bidding document. 6. Mr. S. Sarma, learned counsel for the petitioner fairly states that the petitioner has no grievance as regards the corrigendum incorporated as regards Point No. 19 of the Annexure-1 technical bid format. It has also been taken note of that the modification to Point No.19 of Annexure-1 technical bid format was made as per the decision of the tender committee in the pre-bid meeting held on 25.06.2020. The notice inviting tender of 23.06.2020 provided that there would be a pre-bid meeting to be held on 25.06.2020 at 11.30 A.M and it being an apparent inconsistency between the provision of Clause 15(c) of the bidding document and Point No.19 of the Annexure-1 technical bid format, the tendering authority was within its permissible limit to bring about the modification so as to make Point No.19 of the Annexure-1 technical bid format to be consistent with the provision of Clause 15(c). 7. In the affidavit-in-opposition by the respondents in the Health Department of the Government of Assam, the minutes of the pre-bid meeting of the tender committee held on 25.06.2020 and the document providing that one of the intending bidder Sri Pulen Gogoi had attended the pre-bid meeting that was held on 25.06.2020 at 11.30 A.M. has been annexed. 8. Mr. 7. In the affidavit-in-opposition by the respondents in the Health Department of the Government of Assam, the minutes of the pre-bid meeting of the tender committee held on 25.06.2020 and the document providing that one of the intending bidder Sri Pulen Gogoi had attended the pre-bid meeting that was held on 25.06.2020 at 11.30 A.M. has been annexed. 8. Mr. S Sarma, learned counsel for the petitioner points out that the corrigendum dated 27.06.2020 itself provides that the corrigendum had been made pursuant to the discussions in the meeting of the tender committee held on 25.06.2020 and 27.06.2020. The learned counsel raises the contention that even though a modification to Point No.19 to Annexure -1 technical bid format may have been made pursuant to the decision of the tender committee in the meeting held on 25.06.2020, but the other modification with regard to Clause No.15(d) of the bidding document was apparently made pursuant to a meeting held on 27.06.2020, as discernible from the corrigendum dated 27.06.2020 9. In the circumstance, it is the contention of Mr. S Sarma, learned counsel for the petitioner that the notice inviting tender having provided 25.06.2020 at 11.A.M to be the date and time for the pre-bid meeting and a pre-bid meeting of the tender committee having been held on 25.06.2020 and a decision thereof being taken on 25.06.2020 to modify the Point No.19 of Annexure-I technical bid format, the respondent authorities, under the terms and conditions of the notice inviting tender, could not have held another pre-bid meeting on 27.06.2020 so as to incorporate a modification to Clause 15(d) of the bidding document. 10. In this respect, in the affidavit-in-opposition of the respondents a stand has been taken that subsequent to the pre-bid meeting held on 25.06.2020, the Principal-cum-Chief Superintendant AMCH, had received four emails on 26.06.2020 from certain intending bidders, wherein a request was made to reduce the turnover to Rs.1crore in the last three years and to remove the criteria of having the capacity to supply to 500 patients by omitting the word patient from the concerned clause. The affidavit-inopposition further provides that thereafter another meeting of the tender committee was held on 27.06.2020 wherein a conscious decision was taken to change the expression ''similar health institution'' to ''similar institution''. The affidavit-inopposition further provides that thereafter another meeting of the tender committee was held on 27.06.2020 wherein a conscious decision was taken to change the expression ''similar health institution'' to ''similar institution''. Accordingly it was decided in the meeting to modify Clause 15(d) of the bidding document by clarifying that similar nature of work means supplying directory services in government hospital, similar institutions, PSU, autonomous bodies, government offices, similar organizations on a daily basis with a minimum capacity of 500 persons/patients, but with a rider that the bidder must have a capacity to feed 1500 persons/patients per day throughout the year as because the bed capacity of AMCH is 1700 in number. Thereafter it is the stand of the respondents that corrigendum dated 27.06.2020 was issued pursuant to the pre-bid meeting held on 25.06.2020 and the meeting dated 27.06.2020 of the tender committee. 11. Mr. D Saikia, learned senior counsel for the respondents specifically contends that the meeting of the tender committee held on 25.06.2020 was the pre-bid meeting as contemplated in the notice inviting tender which was scheduled to have been held on 25.06.2020, whereas the meeting of the tender committee held on 27.06.2020 was a meeting arranged by the tender committee on their own initiative as because the tender committee thought that certain clarifications were necessary to remove the ambiguity that had been noticed between Clause 15(d) and 15(j) of the bidding document. According to the learned senior counsel, Clause 15(j) of the biding document requires that the intending bidder must have adequate experience of executing of similar work in government offices, PSUs, autonomous bodies and other similar organizations. But the unmodified Clause 15(d) had provided that in order to qualify in the technical bid the bidder should have the eligibility of an experience of similar nature of work for three years or more and it was explained in Clause 15(d) itself that similar nature of work means supplying of dietary services in a hospital/similar health organization on a daily basis with a minimum occupancy of 500 persons. According to the learned senior counsel it was an inadvertent mistake due to oversight that the expression ''similar health institution'' was incorporated in Clause 15(d) of the bidding document. According to the learned senior counsel it was an inadvertent mistake due to oversight that the expression ''similar health institution'' was incorporated in Clause 15(d) of the bidding document. The learned senior counsel also refers to the similar Clause 15(d) of the bidding document pertaining to the notice inviting tender for the same work of supplying dietary services to the AMCH which was issued in the year 2017. In fact, in the bidding process in the year 2017, it was the present petitioner who was the successful bidder and was awarded the contract. In Clause 15(d) of the bidding document of the year 2017, the requirement was for an experience of 3(three) years of similar work of supplying dietary services in a hospital/organization. A clause similar to Clause 15(j) of the present bidding document was also in existence in the bidding document of the year 2017. 12. According to the learned senior counsel, the tendering authority having realised the mistake of incorporating the expression ''similar health institute'' in Clause 15(d) of the bidding document and having found it to be inconsistent with Clause 15(j), thought it to be appropriate to convene a meeting of the tender committee to take a decision for modifying the original Clause 15(d) of the bidding document and replace it by the new Clause 15(d) as depicted in the decision of the tender committee dated 27.06.2020 as well as the corrigendum dated 27.06.2020. In the circumstance, it is the submission of the learned senior counsel that the meeting of the tender committee held on 27.06.2020 is not a pre-bid meeting of the intending bidders, nor it was as because of the four emails received by the authorities from four of the intending bidders, but it was a meeting simpliciter of the tender committee to bring about a modification to remove the ambiguity between Clause 15(d) and Clause 15(j) of the bidding document, in a situation where, if the ambiguity is not removed, the provisions of Clause 15(j) would become redundant. 13. Mr. S Sarma, learned counsel for the petitioner, per contra, refers to Clause 13 of the bidding document which inter alia provides that the tender authority at any time prior to the date of submission of the tender for any reason or decision, may modify the terms and conditions of the bidding document by a corrigendum displayed in the website of www.assamtenders.gov.in. According to the learned counsel the terms and conditions of the bidding document itself having provided that any modification to the terms and conditions can be made at any time prior to the date of submission of tender, and the date of submission of tender having commenced from 26.06.2020, the tender authority did not have any further jurisdiction to convene a meeting on 27.06.2020 and take a decision to modify the terms and conditions of the bid document. wxyz Clause 13 of the bid document is extracted as below: zyxw wxyz "13. At any time prior to date of submission of tender, Tender Inviting Authority may, for any reason, or decision, modify the terms & conditions of the tender document by a corrigendum displayed on the website of www.assamtenders.gov.in In order to provide reasonable time to take the amendment into account in preparing their bid, Tender Inviting Authority may or may not, at his discretion, extend the date and time for submission of tenders." zyxw 14. Apart from raising the question of the jurisdiction of the tender committee to have convened the meeting on 27.06.2020 and to issue the resultant corrigendum of 27.06.2020, Mr. Sarma, learned counsel also raised the contention that the decision of the tender committee as annexed to the affidavitin-opposition of the respondents do not disclose any reason as to why the decision to modify Clause 15(d) of the bidding document was taken and from the said point of view also neither the decision of the tender committee of 27.06.2020, nor the corrigendum of 27.06.2020 would be sustainable in the eye of law and consequently warrants an interference. 15. Mr. S Sarma, learned counsel has also raised the contention that as per Section 22 of the Assam Public Procurement Act of 2017(for short, the Act of 2017) all requests for clarification and responses thereto are required to be intimated to all bidders and where applicable be published on the state public procurement portal. According to the learned counsel, the meeting of the tender committee held on 27.06.2020 being related to the clarifications sought by the four intending bidders, all such requests for clarifications and the responses thereto were required to have been intimated to the petitioner. As no such intimation was made, there was an aberration of the provision of Section 22(3) of the Act of 2017. 16. Mr. As no such intimation was made, there was an aberration of the provision of Section 22(3) of the Act of 2017. 16. Mr. D Saikia, learned senior counsel for the respondents, on the other hand, reiterates his contention that the meeting of the tender committee held on 27.06.2020 was not a part of the pre-bid meeting nor it was based on the clarifications requested by the four bidders and, therefore, the provisions of Section 22 which relate to pre-bid clarifications are not applicable to the meeting held on 27.06.2020. The learned senior counsel contends that the meeting of the tender committee held on 27.06.2020 was under the provisions of Section 23 of the Act of 2017 which pertains to changes to bidding documents. The learned senior counsel specifically refers to the provision of Section 23(2) and submits that the said provision enables the tender authority to issue a clarification or modification to the bidding documents prior to the last date of submission of the bids, by providing that in such event, the time limit for submission of the bids be suitably extended by providing the bidders sufficient time to take into account the clarification or modification, as the case may be, while submitting their bids. Further reference has also been made to the provision of Section 23(3) of the Act of 2017, which provides that any bidder who had submitted his bid in response to the original invitation shall have the opportunity to modify or re-submit it, as the case may, within the time originally allotted or extended after the changes are made to the bidding document. 17. Mr. D Saikia, learned senior counsel for the respondents by referring to the provisions of Sections 23(2) and 23(3) of the Act of 2017 submits that, upon a conjoint reading of Sections 23(2) and 23(3) of the Act, a provision to modify the terms and condition of the bidding document at any time prior to the last date of submission of the bids is inherent in the Act of 2017 itself. 18. Provisions of Section 22 & 23 of the Act of 2017 are extracted as below: wxyz " 22. Pre-bid clarifications- zyxw wxyz (1) Any bidder may, in writing, seek clarifications from the procuring entity in respect of the bidding documents. 18. Provisions of Section 22 & 23 of the Act of 2017 are extracted as below: wxyz " 22. Pre-bid clarifications- zyxw wxyz (1) Any bidder may, in writing, seek clarifications from the procuring entity in respect of the bidding documents. zyxw wxyz (2) The period within which the bidders may seek clarifications under sub-section (1) and the period within which the procuring entity shall respond to such requests for clarifications shall be specified in the bidding documents. zyxw wxyz (3) All requests for clarifications and responses thereto shall be intimated to all bidders and where applicable, shall be published on the State Public Procurement Portal. zyxw wxyz (4) A procuring entity may hold a pre-bid conference to clarify doubts of potential bidders in respect of a particular procurement and the records of such conference shall be intimated to all bidders and where applicable, shall be published on the State Public Procurement Portal. zyxw wxyz 23. Changes to bidding documents- zyxw wxyz (1) In case any modification is made to the bidding documents or any clarification is issued which materially affects the terms contained in the bidding documents, the procuring entity shall publish such modification or clarification in the same manner as the publication of the initial bidding documents. zyxw wxyz (2) In case a clarification or modification is issued to the bidding documents, the procuring entity may, prior to the last date for submission of bids, extend such time limit in order to allow the bidders sufficient time to take into account the clarification or modification, as the case may be, while submitting their bids. zyxw wxyz (3) Any bidder who has submitted his bid in response to the original invitation shall have the opportunity to modify or re-submit it, as the case may be, within the period of time originally allotted or such extended time as may be allowed for submission of bids, when changes are made to the bidding documents by the procuring entity: zyxw wxyz Provided that the bid last submitted or the bid as modified by the bidder shall be considered for evaluation." zyxw 19. In the conspectus of the contentions raised by the rival parties, the following questions arise for an adjudication. wxyz (a). In the conspectus of the contentions raised by the rival parties, the following questions arise for an adjudication. wxyz (a). Clause 13 of the bidding document having provided that a modification to the terms and conditions of the bidding document can be incorporated at any time prior to the date of submission of the tender, could the tender authority had taken the decision to modify Clause 15(d) in the meeting held on 27.06.2020 and issued the corrigendum on 27.06.2020, when the bidding process had commenced from 26.06.2020? zyxw wxyz (b). The decision of the tender committee of 27.06.2020 having not provided any reason for such decision, would a writ in the nature of certiorari be maintainable for the reason of reasons having not been provided? zyxw wxyz (c). Does Clause 15(d) of the bidding document as it appeared prior to the modification bestowed a legal right on the petitioner to participate in the tender process where the eligibility would be confined amongst such bidders who had the experience of making the dietary supplies to 500 persons in a hospital/similar health institution alone? zyxw wxyz Clause 13 of the bid document having provided that a modification to the terms and condition of the bid document can be incorporated at any time prior to the date of submission of the tender, could the tendering authority had taken the decision to modify Clause 15(d) in the meeting held on 27.06.2020 and issued the corrigendum on 27.06.2020, when the bidding process had commenced from 26.06.2020? zyxw 20. Mr. S Sarma, learned counsel for the petitioner by referring to Clause 13 of the bidding document submitted that the bidding process having commenced on 26.06.2020 and Clause 13 having provided that any modification to the terms and conditions of the tender can be brought in at any time prior to the date of submission of the tender, the respondent tender authority did not have the jurisdiction to hold the meeting of the tender committee on 27.06.2020 and take a decision to modify the Clause 15(d) of the bidding document. Further submission made is that even if any such pre-bid meeting of the tender committee would be permissible on the basis of clarifications being sought for by any of the intending bidders, the same can be done only upon an intimation being made to the petitioner regarding such clarifications sought for and the responses thereto. Further submission made is that even if any such pre-bid meeting of the tender committee would be permissible on the basis of clarifications being sought for by any of the intending bidders, the same can be done only upon an intimation being made to the petitioner regarding such clarifications sought for and the responses thereto. As no intimation was made to the petitioner as regards the clarifications sought for as well as the responses thereto, the decision as well as the corrigendum dated 27.06.2020 pertaining to the modification of Clause 15(d) of the bid document would not be sustainable in view of an aberration of the provisions of Section 22(3) of the Act of 2017. 21. Per contra, it is the submission of Mr. D Saikia, learned senior counsel for the respondents that under the provisions of Section 23 of the Act of 2017, more particularly Section 23(2), it would be permissible for the tender authority to issue any clarification or modification to the terms and conditions in the bidding document prior to the last date of submission of bids and if done, would require an extension of the time limit for submission of the bid in order to allow the bidders sufficient time to take into account the clarification or modification while submitting their bids. Section 23(3) makes it clear that even if a bidder had submitted his bid in response to the original terms and conditions, an opportunity would have to be given to such bidder to either modify or resubmit his bid. According to the learned senior counsel a conjoint reading of Sections 23(2) and 23(3) of the Act of 2017, makes it discernible that the tender authority has the jurisdiction to modify or clarify any of the terms and condition of the bid document prior to the last date of submission of the bids. 22. According to the learned senior counsel a conjoint reading of Sections 23(2) and 23(3) of the Act of 2017, makes it discernible that the tender authority has the jurisdiction to modify or clarify any of the terms and condition of the bid document prior to the last date of submission of the bids. 22. The petitioner having relied upon Section 22(2) of the Act of 2017 to contend that the clarifications sought for by the other bidders and the responses thereof ought to have been intimated to the petitioner and the respondents having relied upon to the provisions of Section 23 of the Act of 2017 and further the Act of 2017 being related to a procurement by public entities, it would have to be accepted that the provisions of the Act of 2017 would also be applicable and govern the procedure to be adopted in the tendering process. In the circumstance we are required to examine the provisions of Clause 13 of the bidding document, as well as the provisions of Section 23 of the Act of 2017 to arrive at a conclusion as to whether any modification could have been made by the tender authority to Clause 15(d) of the bidding document subsequent to the date of commencement of the bidding process. 23. A conjoint reading of Sections 22 and 23 of the Act of 2017 goes to show that the provisions of Section 22 pertains to the stage of pre bid clarifications. Section 22(1) provides that any bidder may in writing seek clarifications from the procuring entity in respect of the bidding documents and Section 22(2) provides that the period within which the bidders may seek clarifications and the period within which the procuring entity would be required to respond to such requests for clarifications shall be specified in the bidding documents. Apparently, the provision in the notice inviting tender that the pre bid meeting would be held on 25.06.2020 at 11.00 A.M. is a reference to the time period within which the bidders may seek their clarifications. Section 22(3) provides that all such requests for clarifications and the responses thereto be intimated to all the bidders and shall be published the state public procurement portal. Section 22(3) provides that all such requests for clarifications and the responses thereto be intimated to all the bidders and shall be published the state public procurement portal. The purpose of Section 22(3) apparently appears to be to make it known to the other bidders as regards any such requests for the clarifications that may come from a bidder as well as the response of the authority to such request, with a further purpose that if the other bidders intend to respond to any such requests for clarifications being sought, they may do so. wxyz The provisions of Section 22 of the Act of 2017 relates to the stage of pre bid meeting where a given bidder may request for a clarification and the other bidders are required to be intimated of any such requests for clarifications and the responses of the authorities thereto. zyxw 24. Section 23 of the Act of 2017 without reference to any pre bid meeting pertains to the changes that may be made to the bidding documents by the tender authority. Section 23(1) requires that in the event of any modification being made to the bidding documents or any clarification being issued, which may materially affect the terms and conditions contained in the bidding documents, such modification or clarification are required to be published in the same manner in which the initial document was published. Apparently no time limit is prescribed under Section 23 as to at which stage the modification or clarification can be made to the bidding document. Section 23(2) provides that in the event a modification or clarification is made to the bidding document, the tendering authority prior to the last date of submission may extend such time limit in order to allow the bidders to take into account the modification or the clarification that had been made for the purpose of submission of their bids. Further Section 23(3) provides that a bidder who had already submitted his bid in response to the pre modified/pre clarified terms and conditions, be given an opportunity to modify or re-submit his bid within the originally allotted or extended time. wxyz A reading of Section 23(2) of the Act of 2017 makes it discernible that the modification or clarification referred therein may also be subsequent to the bidding process having started, but it has to be prior to the last of submission of the bids. wxyz A reading of Section 23(2) of the Act of 2017 makes it discernible that the modification or clarification referred therein may also be subsequent to the bidding process having started, but it has to be prior to the last of submission of the bids. Section 23(3) makes it further clear that even if a bidder had submitted his bid, a modification or clarification of the bidding document can still be made and in such event in order to avoid any prejudice being caused to the bidder who had already submitted his bid, such bidder would be given the opportunity to either modify or resubmit his bid taking into consideration the modification or clarification that may have been made. But nevertheless it is a clear indication that a modification or clarification to the bidding document can be made even after submission of a bid, meaning thereby that even after the bidding process had started. zyxw 25. From the point of view of the provisions of Section 23 of the Act of 2017, it cannot be said that the respondent tender authority would be without any authority or jurisdiction to make a modification or clarification to the bidding document after the bidding process had started on 26.06.2020. 26. With regard to the submission of Mr. S. Sarma, learned counsel for the petitioner that Clause 13 of the bidding document provides that the terms and conditions of the bidding document may be modified at a time prior to submission of tender by displaying the corrigendum on the given website, and therefore, the very expression ''at any time prior to date of submission of tender'' is itself an indication that the modification of the bidding documents would have to be at a point of time prior to the bidding process having been started, we are required to examine the implication of the expression ''any time prior to the date of submission of tender''. For the purpose, the concept date of submission of tender would have to be examined. Conceptually a tender can be submitted on any date starting from the date on which the bidding process starts up to the date on which the bidding process comes to an end. No explanation is forthcoming in the bidding document as to the meaning of the expression ''date of submission of tender''. Conceptually a tender can be submitted on any date starting from the date on which the bidding process starts up to the date on which the bidding process comes to an end. No explanation is forthcoming in the bidding document as to the meaning of the expression ''date of submission of tender''. In the notice inviting tender it has been provided under the heading ''key dates'' that the bid submission would start from 4.30 P.M of 26.06.2020 upto 4.30 P.M of 02.07.2020. Therefore, it has to be understood that a bid can be submitted by a bidder at any time between 4.30 PM of 26.06.2020 and 4.30 PM of 02.07.2020. When we read the expression ''at any time prior to the date of submission of tender'' appearing in Clause 13 along with the provision that a bid can be submitted by a bidder at any time between 4.30 PM of 26.06.2020 upto 4.30 PM of 02.07.2020, it would be discernible that ''the date of submission of tender'' would have to be construed at any time between 4.30 PM of 26.06.2020 upto 4.30 PM of 02.07.2020. 27. On the other hand, even if we accept the contention of the Mr. S. Sarma, learned counsel for the petitioner that ''the date of submission of tender'', would have to be the date and time when the bidding process had started, still it would be a situation where the expression ''at any time prior to the date of submission of tender'' can be understood in two ways, i.e. either prior to the date and time when the bidding process had started or prior to the period between 4.30 PM of 26.06.2020 upto 4.30 PM of 02.07.2020 during which the bidders could have submitted their bids. 28. When the respondent authorities are of the view that the modification to Clause 15(d) can be brought in at any period between 4.30 PM of 26.06.2020 upto 4.30 PM of 02.07.2020 and it being one of the possible understanding of the expression ''at any time prior to date of submission of tender'', we are of the view that no interference is required on the ground that the authorities had not adopted the other possible understanding of the expression ''at any time prior to date of submission of tender''. It is a settled position of law that if two views are possible, the authorities having adopted one of the possible two views, it would not entail an interference because the other possible view was not adopted. 29. In view of the aforesaid conclusion that a reading of Sections 23(2) and 23(3) of the Act of 2017 gives an indication that a modification to the bidding documents can be brought in even after the bidding process had started but before the last of submission of bids and that Clause 13 of the bidding documents can be read to mean both the situations that the modification can be brought in prior to the bidding process having started or during the period during which the bidding process goes on, we are of the view that it would be unsafe to interfere with the decision of the tender committee of 27.06.2020 as well as the modification incorporated in the corrigendum dated 27.06.2020 in respect of Clause 15(d) of the bidding document, merely for the reason that the said decision was made and the corrigendum was issued subsequent to the bidding process having already started at 4.30 PM of 26.06.2020. wxyz The decision of the tender committee of 27.06.2020 having not provided any reason for such decision, would a writ in the nature of certiorari be maintainable for the reason of reasons having not been provided? zyxw 30. Mr. S Sarma, learned counsel for the petitioner refers to the minutes of the meeting held on 27.06.2020 as annexed to the affidavit-in-opposition of the respondents to point out that no reasons have been stated as to why the tender committee arrived at its decision to modify Clause 15(d) of the bidding document. Although some reasons are attempted to be stated in the affidavit-in-opposition, Mr. Sarma learned counsel submitted that as per the pronouncement of the Supreme Court in paragraph 8 of Mohinder Singh Gill Vs. Chief Election Commissioner, (1978) 1 SCC 405 and paragraph 9 of Commissioner of Police, Bombay Vs. Gordhandas Bhanji, (1952) AIR SC 16 , the reasons cannot be supplanted by means of an affidavit in opposition by the respondents and the subsequent explanations of the public orders cannot be used to justify the infirmity in the order itself. 31. Accordingly, it is the submission of Mr. Gordhandas Bhanji, (1952) AIR SC 16 , the reasons cannot be supplanted by means of an affidavit in opposition by the respondents and the subsequent explanations of the public orders cannot be used to justify the infirmity in the order itself. 31. Accordingly, it is the submission of Mr. S. Sarma, learned counsel for the petitioner that the decision of the tender committee of 27.06.2020 being bereft of any reasons, the same is not sustainable and is liable to be interfered. In the circumstance, we are required to examine the question whether in the absence of any reason being given for the decision taken in the meeting of the tender committee on 27.06.2020, the decision itself is required to be interfered. 32. The decision of the tender committee of 27.06.2020 apparently is that the expression ''similar health institution'' appearing in Clause 15(d) of the bidding documents be changed to ''similar institution'' and Clause 15(d) be modified by requiring an experience of similar nature of work which would mean supplying dietary services in government hospitals, similar institutions, PSUs, autonomous bodies, similar organizations on a daily basis with a minimum occupancy of 500 persons/patients and the bidder must have the capacity to feed 1500 persons/patient per day throughout the year as because the bid capacity of AMCH is 1700 in number. 33. A reading of the decision of the tender committee of 27.06.2020 makes it discernible that by the decision a matter of policy of the tender authority had been provided that the expression ''similar health institute'' be now read as ''similar institute'' and the experience in supplying dietary services to any of the type of institutions referred therein would constitute an adequate experience. The question as to whether a reason has to be stated by an administrative authority as to why the decision was taken in a given manner, has been settled by the Supreme Court in a plethora of decisions by providing that where a statute confers a discretionary power without imposing an obligation to state reasons, the statutory authority need not give any reason for his decision. An order without reason would be ultra-vires only where an obligation to state reasons is imposed by the relevant statute. 34. An order without reason would be ultra-vires only where an obligation to state reasons is imposed by the relevant statute. 34. Reference be made to the propositions laid down by the Supreme Court wxyz (i) in paragraph-10 of Union of India -vs- E.G Nambudiri, (1991) 3 SCC 38 , which is extracted as below:- zyxw wxyz "10. There is no dispute that there is no rule or administrative order for recording reasons in rejecting a representation. In the absence of any statutory rule or statutory instructions requiring the competent authority to record reasons in rejecting a representation made by a government servant against the adverse entries the competent authority is not under any obligation to record reasons. But the competent authority has no licence to act arbitrarily, he must act in a fair and just manner. He is required to consider the questions raised by the government servant and examine the same, in the light of the comments made by the officer awarding the adverse entries and the officer countersigning the same. If the representation is rejected after its consideration in a fair and just manner, the order of rejection would not be rendered illegal merely on the ground of absence of reasons. In the absence of any statutory or administrative provision requiring the competent authority to record reasons or to communicate reasons, no exception can be taken to the order rejecting representation merely on the ground of absence of reasons. No order of an administrative authority communicating its decision is rendered illegal on the ground of absence of reasons ex facie and it is not open to the court to interfere with such orders merely on the ground of absence of any reasons. However, it does not mean that the administrative authority is at liberty to pass orders without there being any reasons for the same. In governmental functioning before any order is issued the matter is generally considered at various levels and the reasons and opinions are contained in the notes on the file. The reasons contained in the file enable the competent authority to formulate its opinion. If the order as communicated to the government servant rejecting the representation does not contain any reasons, the order cannot be held to be bad in law. The reasons contained in the file enable the competent authority to formulate its opinion. If the order as communicated to the government servant rejecting the representation does not contain any reasons, the order cannot be held to be bad in law. If such an order is challenged in a court of law it is always open to the competent authority to place the reasons before the court which may have led to the rejection of the representation. It is always open to an administrative authority to produce evidence aliunde before the court to justify its action." zyxw wxyz (ii) paragraph-9 in Kashiram Aggarwalla -vs- Union of India and others, (1965) AIR SC 1028 , which is extracted as below:- zyxw wxyz "9. It is in the light of these considerations that we have to construe the proviso to Section 127(1). As we have already indicated, the construction for which Mr Jain contends is a reasonably possible construction. In fact, if the words used in the proviso are literally read, Mr Jain would be justified in contending that the requirement that reasons must be recorded applies even to cases falling under it. On the other hand, if the obvious object of the proviso is taken into account and the relevant previous background is borne in mind, it would also seem reasonable to hold that in regard to cases falling under the proviso, an opportunity need not be given to the assessee, and the consequential need to record reasons for the transfer is also unnecessary, and this view is plainly consistent with the scheme of the provision and the true intent of its requirements. We would according hold that the impugned orders cannot be challenged on the ground that the Board has not recorded reasons in directing the transfer of the cases pending against the assessee from one Income Tax Officer to another in the same locality." zyxw wxyz (iii) paragraph-3 of Mahabir Jute Mills Ltd. v. Shibban Lal Saxena, (1975) 2 SCC 818 , it had been held as follow:- zyxw wxyz "3. ...... We find ourselves in complete agreement with the view taken by the High Court on this point. ...... We find ourselves in complete agreement with the view taken by the High Court on this point. In a diverse society such as ours the Government has to work through several administrative agencies which have got a very wide sphere and if every administrative order is required to give reasons it will bring the governmental machinery to a stand-still. It is well-settled that while the rules of natural justice would apply to administrative proceedings, it is not necessary that the administrative orders should be speaking orders unless the statute specifically enjoins such a requirement. zyxw 35. From the aforesaid propositions, it is discernible that if the administrative authority has a discretion vested upon it and in exercise of such discretion, a decision is taken and there is no statutory requirement to state reasons for arriving at such decision, it would not be a matter for an interference by the Court in exercise of its certiorari jurisdiction of such decision merely on the ground that no reason as such had been stated for arriving at such decision. It would be open for the Court to go into the records as well as other materials and circumstances, which may indicate as to why the decision was taken and an interference would be called for only when such decision was taken in an arbitrary or capricious manner. 36. No contention has been raised as to why the decision to modify Clause-15(d) of the bidding documents would have to be construed to be arbitrary or capricious. All that has been contended is that in view of Clause-13 of the bidding documents, it would have been an act without jurisdiction on the part of the tender committee to modify Clause 15(d) of the bidding document after the bidding process had started at 4.00 P.M of 26.06.2020. 37. Further, a distinction can also be made between a decision of an administrative authority which determines the rights of a person or the itner-se rights between two or more persons and that of a decision of an administrative authority laying down a procedure or a requirement which may be applicable to the public at large or to a class of persons. In the later type of decision of an administrative authority which lays down a procedure or a requirement which may be applicable in general to the public at large or to any of the persons within a class of persons, unless there is a statutory requirement, it cannot be said that reasons mandatorily have to be provided. 38. In view of such conclusion, the contention of the petitioner that the decision dated 27.06.2020 to modify Clause 15(d) of the bidding document requires an interference for reasons having not been provided for arriving at such decision would be unacceptable. wxyz Does Clause 15(d) of the bidding document as it appeared prior to the modification bestowed a legal right on the petitioner to participate in the tender process where the eligibility would be confined amongst such bidders who had the experience of making the dietary supplies to 500 persons in a hospital/similar health institution alone? zyxw 39. It is the contention of Mr. S Sarma, learned counsel for the petitioner that as per the pre-modified Clause 15(d) of the bidding document, the bidding process would have been confined to such bidders who had the experience of supplying dietary services to 500 persons in a hospital/similar health institution. By relying upon the expression ''similar health institution'', the petitioner understood that the bidding would be confined only amongst such bidders, who had the experience of supplying dietary services to a health institution, which would be an institution in the nature of a hospital/nursing home etc. which caters to patients. Accordingly, a category of persons who may have the experience of supplying dietary services to any other form of institution, other than a health institution, would be ousted from the eligibility of submitting any bid. wxyz Accordingly, it is the contention that the petitioner had acquired a legal right to restrict the eligibility of the bidders amongst such bidders who had the experience of supplying dietary service to a health institution and the modified Clause 15(d) as per the corrigendum had expanded the eligibility criteria to even such bidders, who may have the experience of supplying dietary service also to other institutions. By so expanding the scope of eligibility, the legal right of the petitioner had been violated. zyxw 40. By so expanding the scope of eligibility, the legal right of the petitioner had been violated. zyxw 40. Under such premises, it is the contention of the petitioner that a writ in the nature of certiorari may lie in cases of settlement of tenders, if the process is vitiated by arbitrariness, irrationality vis- -vis Wednesbury reasonableness or procedural impropriety. For the purpose, reliance is placed on the pronouncement of the Supreme Court in paragraph 77 of Tata Cellular -vs- Union of India, (1994) 6 SCC 651 , which is extracted as below:- wxyz "77. The duty of the court is to confine itself to the question of legality. Its concern should be: zyxw wxyz 1. Whether a decision-making authority exceeded its powers? zyxw wxyz 2. Committed an error of law, zyxw wxyz 3. committed a breach of the rules of natural justice, zyxw wxyz 4. reached a decision which no reasonable tribunal would have reached or, zyxw wxyz 5. abused its powers. zyxw wxyz Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under: zyxw wxyz (i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. zyxw wxyz (ii) Irrationality, namely, Wednesbury unreasonableness. zyxw wxyz (iii) Procedural impropriety. zyxw wxyz The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind, (1991) 1 AC 696 , Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, "consider whether something has gone wrong of a nature and degree which requires its intervention". zyxw 41. In all these cases the test to be adopted is that the court should, "consider whether something has gone wrong of a nature and degree which requires its intervention". zyxw 41. True a decision taken by an authority can be interfered in exercise of the jurisdiction of a writ in the nature of certiorari when the decision is vitiated by arbitrariness, irrationality vis- -vis Wednesbury reasonableness or procedural impropriety. For the purpose, reliance has also been placed on the pronouncement of the King''s Bench Division in Associated Provincial Picture Houses Limited -vsWednesbury Corporation, (1948) 1 KB 223 , wherein it had been held as follows:- wxyz "....... The Court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them." zyxw 42. In the instant case, the stand of the respondent authority is that an ambiguity having been noticed between Clause 15(d) and Clause 15(j) of the bidding document, it was thought to be appropriate to bring in a modification to Clause 15(d), so as to make it consistent with Clause 15(j) and in the process, the ambiguity that was noticed be removed. 43. Clause 15(j) apparently relates to the experience of the bidders in execution of a similar work, i.e. supplying dietary supplies, to government offices/PSUs/autonomous bodies and other similar organizations. On the other hand, the pre-modified Clause 15(d) of the bidding document relates to supplying dietary supplies to similar health institutions. 43. Clause 15(j) apparently relates to the experience of the bidders in execution of a similar work, i.e. supplying dietary supplies, to government offices/PSUs/autonomous bodies and other similar organizations. On the other hand, the pre-modified Clause 15(d) of the bidding document relates to supplying dietary supplies to similar health institutions. If clause 15(d) is allowed to remain as such, the requirement of a bidder having the experience of executing a similar work in government offices/PSUs/ autonomous bodies and other similar organizations would become redundant and irrelevant. Clause 15(j) in its present form was also incorporated as Clause 15(j) itself in the bidding document of 2017, where the equivalent Clause 15(d) required the experience of supplying dietary services to ''organizations'' and not keeping it confined only to health organizations. From the said point of view, it would be difficult to accept that in taking its decision of 27.06.2020, resulting in the corrigendum also dated 27.06.2020, the tender committee had taken into matter, which they ought not to have taken into account or conversely they had refused to take into account any matter, which they ought to have taken into account. 44. Be that as it may, we also take note of that in order to invoke a writ in the nature of certiorari, it has been established that certiorari would be available even against administrative bodies not having any quasi-judicial obligation, if they affect the rights of individuals without conforming to the principles of fair play. From such proposition, it is discernible that in order to avail the benefit of a writ in the nature of certiorari, the person claiming the benefit of such writ, would have to show that he had a legal right and such legal right had been affected by the decision which is sought to be interfered in exercise of the certiorari jurisdiction. In this respect, reference is made to the pronouncement of the Supreme Court in paragraph 48 of Jasbhai Motibhai Desai -vs- Roshan Kumar, Haji Bashir Ahmed and others, (1976) 1 SCC 671 , which is extracted as under:- wxyz "48. In the light of the above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In the light of the above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something. He has not been subjected to a legal wrong. He has suffered no legal grievance. He has no legal peg for a justiciable claim to hang on. Therefore he is not a "person aggrieved" and has no locus standi to challenge the grant of the no-objection certificate." zyxw 45. The concept of ''legal right'' or ''right'' is a wide concept, which means what a man is entitled to have; to do or to receive from others within the limits prescribed by law, it is an interest recognized and protected by moral or legal rules [paragraph 15 of the pronouncement of the Supreme Court in Mr. X -vs- Hospital Z, (1998) 8 SCC 296 , an interest which is recognized and protected by law etc. The concept of the expression ''right'' had been lucidly described in a passage in ''The Nature and Sources of the Law'' by John Chipman Gray, in its 2nd edition of 1921, which is as follows: wxyz "Right is a correlative to duty; where there is no duty there can be no right. But the converse is not necessarily true. There may be duties without rights. In order for a duty to create a right, it must be a duty to act or forbear. Thus, among those duties which have rights corresponding to them do not come the duties, if such there be, which call for an inward state of mind, as distinguished from external acts or forbearances. It is only to acts and forbearances that others have a right. It may be our duty to love our neighbor, but he has no right to our love." zyxw 46. From the said passage, in The Nature and Sources of the Law'' by John Chipman Gray, it is discernible that the concept of ''right'' is co-related to there being a corresponding duty upon another to do or forbear from doing certain act. From the said passage, in The Nature and Sources of the Law'' by John Chipman Gray, it is discernible that the concept of ''right'' is co-related to there being a corresponding duty upon another to do or forbear from doing certain act. When we examine the circumstance of the present matter, when the decision dated 27.06.2020 was taken to modify Clause 15(d) of the bidding document, we find that there was no duty cast upon the tender authority to incorporate or retain the pre-modified Clause 15(d) for providing that in order to be eligible in the bidding process, the prospective bidder would have to have the experience of supplying dietary services to ''similar health institutions'' alone. In order to have a fair competition and to determine the best possible supplier, it was open for the tender authority to adopt any eligibility clause which in their discretion would enable them to determine the best possible supplier. 47. In the absence of there being a duty cast upon the tender authority to confine the eligibility amongst such supplier, who had the experience of making dietary supplies to a ''similar health institution'' alone, any provision made in the bidding documents by providing the eligibility limited to the experience of making dietary supply to a ''similar health institution'' would not confer a right on a given bidder to confine the eligibility as provided, to the exclusion of any subsequent modification being made, by which the eligibility may be expanded. Had the pre-modified Clause 15(d) been retained, the confinement of the eligibility to a bidder having the experience of supplying dietary services to a ''similar health institute'' would have given the petitioner an incidental benefit. But a mere possibility of an incidental benefit cannot be the basis to claim a legal right to have such benefit. 48. From the said point of view, we are unable to accept a situation where the petitioner had a legal right bestowed upon him by the pre-modified Clause 15(d) of the bidding documents and that the subsequent modification of Clause 15(d) by the decision and the corrigendum, both dated 27.06.2020 had violated or infringed upon his legal right. 49. 48. From the said point of view, we are unable to accept a situation where the petitioner had a legal right bestowed upon him by the pre-modified Clause 15(d) of the bidding documents and that the subsequent modification of Clause 15(d) by the decision and the corrigendum, both dated 27.06.2020 had violated or infringed upon his legal right. 49. Consequently, in the absence of there being a legal right in favour of the petitioner, let alone a situation where a legal right has been violated by the decision and the corrigendum, both dated 27.06.2020, we are unable to accept that a writ in the nature of certiorari would be justified to interfere with the decision dated 27.06.2020 as well as the corrigendum dated 27.06.2020 by which Clause 15(d) of the bidding document stood modified. 50. In the above premises, there is no merit in the writ petition and the same is accordingly dismissed. However, we clarify that this writ petition has been decided on the basis of the legal contention raised therein and therefore, any views expressed or conclusion arrived shall not be relied upon by the tender authority while evaluating the bid, if any, submitted by the petitioner and the bid, if any, shall be determined on its own merit.