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2021 DIGILAW 130 (GAU)

Dilwar Hussain Laskar v. State of Assam

2021-02-12

MANISH CHOUDHURY

body2021
JUDGMENT : Manish Choudhury, J. 1. This writ petition under Article 226 of the Constitution of India is preferred assailing a speaking order dated 04.09.2020 passed by the Chief Engineer, Water Resources Department, Assam in respect of a contract work under Hailakandi Water Resources Division and for setting aside of a work order dated 08.07.2020 issued in favour of the respondent no. 4 in respect of the said contract work in question and also for a direction to the respondent authorities in the Water Resources Department to issue a fresh work order for the said contract work in favour of the petitioner. 2. The background facts leading to the institution of and necessary for adjudication of the instant writ petition may be adverted to as follows. 3. By a Press Notice for Bid dated 27.4.2020 issued by the respondent no. 2 i.e. the Chief Engineer, Water Resources Department, Assam, bids were invited for a number of works including one work under the Hailakandi Water Resources Division viz. "Immediate measures to dyke along L/B of Katakhal from Gaglacherra to Nutanbazar for restoration of breach like damages occurred at Bamun Lekai for 2019-2020 (Under SDRF)" (hereinafter referred to as 'the subject-work', for easy reference). 4. Considering himself to be eligible and qualified to submit the bid, the petitioner obtained the Bid Document for the subject-work. As per the Invitation for Bid (IFB) and tender details provided in the Bid Document, the approximate value of the subject-work was Rs. 1,49,99,800.88 and the period of completion stipulated for the subject-work had been mentioned as 60 (sixty) days. As per the Press Notice for Bid and the IFB, the contractors/bidders registered with the Water Resources Department, Assam who had experience in execution of works in the Water Resources Department and who possessed the required technical and financial strength could obtain the Standard Bid Document by downloading it from the concerned website. As per the Bid Document schedule, the bid submission end date was 06.05.2020. The bid opening date was mentioned as 7.5.2020. 5. It is the case of the petitioner that after compliance of the necessary formalities, he submitted the bid within the stipulated time period along with the requisite documents necessary to be accompanied with his bid. As, per the Bid Document, a bidder had to submit both the technical bid and the financial bid together on-line. 5. It is the case of the petitioner that after compliance of the necessary formalities, he submitted the bid within the stipulated time period along with the requisite documents necessary to be accompanied with his bid. As, per the Bid Document, a bidder had to submit both the technical bid and the financial bid together on-line. The Bid Document had further listed the documents which were required to be submitted by a bidder along with the technical bid. The technical bids were opened on 07.05.2020 and as per the information received by the petitioner, two bidders i.e., the petitioner and the respondent no. 4 were shown to be qualified on the technical bid opening date. The petitioner came to know about the said information from the Minutes of the meeting of the Bid Evaluation Committee held on 18.06.2020. The technical bids of two other bidders were not admitted. 6. Some relevant information regarding the bid of the respondent no. 4 came to the knowledge of the petitioner immediately thereafter. It is the further case of the petitioner that the respondent no. 4 did not submit the document required to be submitted in compliance of Clause 4(1)(e) and Clause 12(A)(j) of the Bid Document in the prescribed format. Clause 4(1) (e) and Clause 12(A)(j) of the Bid Document required submission of a certificate/up-to-date progress for all the works allotted to the bidder during the preceding 3 (three) financial years prior to the financial year on which tenders were called i.e. 2016-2017, 2017-2018 and 2018-2019', which is referred to hereinafter as 'completion/progress certificate' for the sake of easy reference. Such completion/progress certificate was required to be issued by the authorised Executive Engineer In-charge wherein some details were required to be incorporated under his official seal. 7. Contending that the completion/progress certificate submitted by the respondent no. 4 along with his bid was not in the prescribed format and the decision of the Technical Bid Evaluation Committee to accept the bid of the respondent no. 4 arbitrary and erroneous, the petitioner approached this Court earlier by way of a writ petition, W.P.(C) no. 2864/2020, challenging the acceptance of the technical bid of the respondent no. 4 wherein the respondent no. 4 was impleaded as party-respondent no. 4 apart from the official respondents. The Court after hearing the parties on the contentions raised therein, disposed of the writ petition, W.P.(C) no. 2864/2020, challenging the acceptance of the technical bid of the respondent no. 4 wherein the respondent no. 4 was impleaded as party-respondent no. 4 apart from the official respondents. The Court after hearing the parties on the contentions raised therein, disposed of the writ petition, W.P.(C) no. 2864/2020, by a judgment and order dated 18.8.2020 whereby it interfered with the minutes of the Bid Evaluation Committee dated 18.6.2020 in declaring the technical bid of the respondent no. 4 to be acceptable and had remanded the matter back to the Bid Evaluation Committee for a fresh decision on the aspect as to whether the submission of the completion/progress certificate by the respondent no. 4 in a manner other than the prescribed format would be an acceptable deviation for the tendering authority or such deviation would be fatal so as to declare the bid of the respondent no. 4 to be non responsive. As the Court found that the respondent authorities had issued a work order dated 08.07.2020 in the meantime in favour of the respondent no. 4, the Court also interfered with the said work order. Directions were made to the Bid Evaluation Committee to take a fresh decision within a period of 15 (fifteen) days from the date of receipt of a certified copy of the said judgment and order and to give the reasons for the decision that might be arrived at by them. It was further observed that the subject-work shall be subject to such reasoned order to be passed after hearing the petitioner and the respondent no. 4 by the tendering authority. 8. Subsequent to the said judgment and order dated 18.08.2020, a meeting of the Bid Evaluation Committee was convened on 01.09.2020 and both the petitioner and the respondent no. 4 were invited to attend the said meeting. Thereafter, as per the recommendation of the Bid Evaluation Committee, the respondent no. 2 had passed the speaking order on 04.09.2020 whereby the respondent no. 2 decided not to alter/cancel the earlier work order issued in favour of the respondent no. 4. Assailing the said speaking order dated 04.09.2020, the writ petitioner has approached this Court again by this writ petition, seeking the reliefs, mentioned above. 9. Heard Mr. S.K. Goswami and Mr. N. Barman, learned counsel for the petitioner. Also heard Mr. B. Goswami, learned Additional Advocate General, Assam assisted by Ms. 4. Assailing the said speaking order dated 04.09.2020, the writ petitioner has approached this Court again by this writ petition, seeking the reliefs, mentioned above. 9. Heard Mr. S.K. Goswami and Mr. N. Barman, learned counsel for the petitioner. Also heard Mr. B. Goswami, learned Additional Advocate General, Assam assisted by Ms. S. Chetia, learned Standing Counsel, Water Resources Department for the respondent nos. 1, 2 and 3 and Mr. T.J. Mahanta, learned Senior Counsel assisted by Mr. E. Ahmed, learned counsel for the respondent no. 4. 10. The respondent no. 5 had appeared through learned engaged counsel on 9.12.2020 and had sought time for a week for filing his response in the case, but the learned engaged counsel for the respondent no. 5 had neither appeared thereafter nor the respondent no. 5 had filed any response in the case. The learned counsel for the petitioner has submitted that the presence of the respondent no. 5 is not necessary as he would not be urging anything against the respondent no. 5 and he has, thus, submitted that the writ petition shall be heard in absence of the respondent no. 5 at the risk of the petitioner. In such view of the matter, the writ petition is heard at the admission stage for final adjudication, as agreed to by the learned counsel for the parties present. 11. The prime contention of the petitioner is that Clause 12 of the Bid Document enumerated the documents required to be submitted along with the technical bid. Reference to that effect was also made to Clause 4(1)(e) of the Bid Document. It is the contention of the petitioner that a bidder needed to submit "a certificate/up-to-date progress for all the works allotted to him during the preceding 3 (three) financial years (FY) prior to the financial year on which the tender was called for i.e. 2016-2017, 2017-2018 and 2018-2019" i.e., the completion/progress certificate. A specimen of the prescribed format for such completion/progress certificate had also been made part of the Bid Document. According to the petitioner, submission of such duly filled-up completion/progress certificate for all the works allotted to a bidder during the preceding three financial years in the prescribed format is an essential condition for qualification at the technical bid evaluation stage. Referring to the certificates of the petitioner as well as the respondent no. According to the petitioner, submission of such duly filled-up completion/progress certificate for all the works allotted to a bidder during the preceding three financial years in the prescribed format is an essential condition for qualification at the technical bid evaluation stage. Referring to the certificates of the petitioner as well as the respondent no. 4, the learned counsel for the petitioner has submitted that a bare perusal of the two certificates makes it evident that the completion/progress certificate submitted by the petitioner was in the prescribed format but the completion/progress certificate of the respondent no. 4 was not in the prescribed format. As such, the bid of the respondent no. 4 ought to have entailed disqualification at the technical bid evaluation stage itself. 11.1. It is the further submission that the impugned speaking order dated 04.09.2020 was not in consonance with the Court's directions in the judgment and order dated 18.08.2020. The Court while remanding the matter back to the Bid Evaluation Committee for a fresh decision, had directed to consider as to whether submission of the completion/progress certificate by the respondent no. 4 in a format other than the prescribed format would be an acceptable deviation or not. But the respondent authorities while passing the impugned speaking order, according to the petitioner, did not record appropriate reasons in terms of the direction of this Court despite accepting that the completion/progress certificate submitted by the respondent no. 4 was not in the prescribed format. It was considered to be an acceptable deviation based on the statement made by the Executive Engineer subsequently which, according to the petitioner, was not permissible as the same would amount to filling up a lacuna. 11.2. It is also a contention of the petitioner that the respondent no. 4 had subsequently submitted a completion/progress certificate dated 27.08.2020 purportedly in compliance of the prescribed format given in the Bid Document under the signature of the concerned Executive Engineer which was at variance with the earlier completion/progress certificate dated 05.05.2020 submitted by the petitioner along with his bid. The facts and figures including the monetary values of the contract works in the two completion/progress certificates were also at variance and therefore, none of the two certificates could be made acceptable. 11.3. It is further submitted that though the work order was issued to the respondent no. The facts and figures including the monetary values of the contract works in the two completion/progress certificates were also at variance and therefore, none of the two certificates could be made acceptable. 11.3. It is further submitted that though the work order was issued to the respondent no. 4 on 08.07.2020 but the details about the same was uploaded in the website only on 28.07.2020 which, according to the petitioner, was not in conformity with the guidelines as regards issuance of allotment of contract work which resulted in non-transparency in the tender process. The petitioner has, therefore, alleged mala fide against the State respondents. 11.4. The learned counsel for the petitioner has placed reliance in the decisions of the Hon'ble Supreme Court of India in Central Coalfields Limited Vs. SLL-SML (Joint Venture Consortium), reported in (2016) 8 SCC 622 , and a decision of a Division Bench of this Court in Union of India Vs. Phanindra Kumar Baishya, reported in 2018 (5) GLT 448. 12. Mr. Goswami, learned Additional Advocate General appearing for the State respondents has submitted that though it could be said in a strict sense that there was no strict compliance on the part of the respondent no. 4 with regard to submission of the completion/progress certificate in the prescribed format was concerned but there was substantial compliance. He has submitted that no interference is called for as the speaking order is in conformity with the directions made. 12.1. He has submitted that it is not the case of the petitioner that the respondent no. 4 lacks the qualification, eligibility, experience and capacity to execute the subject-work. Like the petitioner, the respondent no. 4 is also a Class-I(A) category contractor enlisted with the respondent department The respondent no. 4 had executed works previously under the respondent department which were worth more than the subject-work. By referring to a Single Work Done Certificate issued on 05.05.2020, available at page - 119 of the petition papers, he has submitted that the respondent no. 4 had successfully completed a contract work like the subject-work. 12.2. 4 had executed works previously under the respondent department which were worth more than the subject-work. By referring to a Single Work Done Certificate issued on 05.05.2020, available at page - 119 of the petition papers, he has submitted that the respondent no. 4 had successfully completed a contract work like the subject-work. 12.2. Elaborating his submissions further, he has submitted that by remanding the matter back to the respondent authorities vide the judgment and order dated 18.08.2020, this Court directed the tendering authority to examine as to whether non-submission of the completion/progress certificate in the prescribed format should be termed as an acceptable variation for tendering authority and to render its decision on it recording reasons. Accordingly, the tendering authority had examined the credentials of the respondent no. 4 and also called for a detailed statement from the respondent no. 3 under which the respondent no. 4 had executed works and has been executing works and it was after a detailed deliberation the tendering authority had decided not to alter its earlier decision of awarding the subject-work to the respondent no. 4. 12.3. He has further submitted that time is the essence of the subject-work and the time period stipulated for the subject-work is 60 (sixty) days. The respondent no. 4 had, in the meantime, gone ahead with the execution of the subject-work and had already completed about 20% of it as on 09.10.2020. By producing an item wise progress (executed) report (marked 'document X') issued by the Executive Engineer, Hailakandi Water Resources Division on 07.12.2020, he has submitted that the overall progress achieved in respect of the subject work upto 07.12.2020 was 32% and it will not be prudent to terminate the work order and to award the balance work in favour of the petitioner, as has been sought for, at this stage as the same would be against the public interest, more particularly, when the petitioner was not the lowest bidder. 13. Mr. Mahanta, learned Senior Counsel appearing for respondent no. 4 has submitted that save and except the allegation raised in respect of the completion/progress certificate submitted by the respondent no. 4 nothing has been alleged as regards qualification, eligibility, experience and capacity of the respondent no. 4 to execute the subject-work. Thus, the credentials of the respondent no. 4 has not been put to question in any manner. 4 has submitted that save and except the allegation raised in respect of the completion/progress certificate submitted by the respondent no. 4 nothing has been alleged as regards qualification, eligibility, experience and capacity of the respondent no. 4 to execute the subject-work. Thus, the credentials of the respondent no. 4 has not been put to question in any manner. The issue is confined in a limited sphere as to whether there was aberration in the submission of the completion/progress certificate and if yes, as to whether the same should entail cancellation of the work order which had already been issued in favour of the respondent no. 4 pursuant to which the respondent no. 4 has already achieved substantial progress. 13.1. He has highlighted the fact that the respondent no. 4 was the lowest valid bidder and the petitioner was the only other valid bidder but there was substantial difference between their two financial bids. He, thus, submits that there is no element of public interest involved in the issue sought to be raised by the petitioner and since there is no public interest involved in the adjudication of the present writ petition only assertion of individual interests of the petitioner in making profit with the execution of a public work should not tilt the balance in favour of the petitioner. 13.2. It is further submitted that the completion/progress certificates in favour of the petitioner as well as the respondent no. 4 were issued by the same respondent authority i.e., the respondent no. 3. When the said respondent authority issued the completion/progress certificate in favour of the petitioner it was in the prescribed format but when the respondent no. 4 requested for issuance of the completion/progress certificate for the purpose of submitting his bid in connection with the subject-work the respondent no. 4 had chosen not to issue the completion/progress certificate in the prescribed format. Thus, no fault can be attributed to the respondent no. 4 for such completion/progress certificate. It was only after remand of the matter the respondent no. 3 had issued the completion/progress certificate in the prescribed format when called for. 13.3. 4 had chosen not to issue the completion/progress certificate in the prescribed format. Thus, no fault can be attributed to the respondent no. 4 for such completion/progress certificate. It was only after remand of the matter the respondent no. 3 had issued the completion/progress certificate in the prescribed format when called for. 13.3. This Court had remanded the matter back to the respondent authorities only to examine as to whether non-submission of the completion/progress certificate in the prescribed format could be considered as acceptable deviation or not for the tendering authority and, as such, there is no question to determine as to whether submission of the completion/progress certificate in the prescribed format to be an essential condition or not in the peculiar fact situation obtaining in the case in hand. Since the competent authority by assigning reasons had passed the speaking order dated 04.09.2020 accepting such non-submission to be acceptable deviation after satisfying itself by calling for a detailed statement and by verifying about the existing as well as completed works of the respondent no. 4 in terms of sub-clauses V & VI of Clause 29 of the Bid Document, no interference is required in the instant case. 13.4. In support of his submissions, Mr. Mahanta has placed reliance in the decisions of the Hon'ble Supreme Court of India in Central Coalfields Limited Vs. SLL-SML (Joint Venture Consortium) (supra); in Civil Appeal No. of 2020 @ Special Leave Petition (Civil) No. 12766 of 2020 [M/s. Galaxy Transport Agencies, Contractors, Traders, Transports and Suppliers Vs. M/s. New J.K. Roadways, Fleet Owners and Transport Contractors & Ors.] rendered on 18.12.2020 and also in Union of India Vs. Phanindra Kumar Baishya (supra). 14. I have duly considered the rival submissions advanced by the learned counsel for the parties and also perused the materials brought on record through the pleadings of the parties. I have also considered the decisions cited about which reference would be made in the later part of this order. 15. By the Press Notice for Bid (NIT, for short) dated 27.04.2020, the respondent no. 2 i.e. the Chief Engineer, Water Resources Department, Assam as the tendering authority invited bids from approved and eligible contractors for a total 9 (nine) nos. of works under various divisions. One of such works for which this writ petition is filed was the subject-work viz. By the Press Notice for Bid (NIT, for short) dated 27.04.2020, the respondent no. 2 i.e. the Chief Engineer, Water Resources Department, Assam as the tendering authority invited bids from approved and eligible contractors for a total 9 (nine) nos. of works under various divisions. One of such works for which this writ petition is filed was the subject-work viz. "Immediate measures to dyke along L/B of Katakhal from Gaglacherra to Nutanbazar for restoration of breach like damages occurred at Bamun Lekal for 2019-20 (Under SDRF)". The contractor/bidder must be registered with the Electronics Tendering System (ETS) of the Government of Assam. The NIT stipulated that the interested registered contractors/bidders of the Water Resources Department, Assam who possessed required technical and financial strength could obtain the Bid Document by downloading it from the concerned website. As per the NIT, bid submission start date and bid submission end date were 30.04.2020, 10-00 hrs and 6.5.2020, 14-00 hrs. respectively. As per Clause 18 of the Bid document, only online bids would be accepted. The bids were to be opened on 07.05.2020 at 14-05 hrs. The estimated cost of the subject-work was Rs. 1,49,99,860.88 and the time allowed for completion, as indicated in the NIT, was 60 (sixty) days. 16. Clause IV of the Bid document had set out the qualification criteria of the bidders. As per Clause 4(1)(e), a bidder was required to submit a completion certificate/up-to-date progress for all the works allotted to him during preceding three Financial Years (FY) prior to the Financial Year on which the tender was called for (i.e. 2016-2017, 2017-2018 & 2018-2019), referred herein as completion/progress certificate, and such completion/progress certificate should be issued by the authorized Executive Engineer In-charge having present official reference issue no. and date duly stamped with official round seal as per the prescribed format provided in the Bid Document. 17. The competitive bidding process initiated by the NIT dated 27.04.2020 had envisaged a two-stage bidding process and, as such, a bidder had to submit a technical bid and a financial bid together at the time of submission of the bid. Both the technical bid and the financial bid were to be uploaded through on-line. 17. The competitive bidding process initiated by the NIT dated 27.04.2020 had envisaged a two-stage bidding process and, as such, a bidder had to submit a technical bid and a financial bid together at the time of submission of the bid. Both the technical bid and the financial bid were to be uploaded through on-line. However, one hard copy of the technical bid along with the supporting documents was to be submitted in the office of the concerned Executive Engineer or E-tendering Cell located in the office of the Chief Engineer, Water Resources Department, Assam for verification and checking authenticity of documents during evaluation. Clause 12(A) had prescribed that the technical bid to be submitted by a bidder should comprise of a nos. of documents, listed at serial nos. (a) to (y). Clause 12(A)(j) had enlisted the completion/progress certificate as one of the documents which should be submitted along with the technical bid to be submitted by a bidder. Thus, both Clause 4(1)(e) and Clause 12(A)(j) had referred to the same completion/progress certificate. 18. There is no dispute to the fact that both the petitioner and the respondent no. 4 are Class-I(A) category contractors enlisted with the respondent Water Resources Department. Both of them had executed works previously under the respondent department. After obtaining the copies of the Bid Document, both of them had submitted their respective bids in response to the NIT dated 27.04.2020 for the subject-work. Responding to the NIT, two other bidders had also submitted their bids for the subject-work. When the bids were opened by the tendering authority the bids of those two other bidders were found non-responsive and were, accordingly, rejected thereby leaving only the petitioner and the respondent no. 4 in the fray. Upon evaluation of the technical bids, the bids of the petitioner and the respondent no. 4 were found responsive for further consideration. As per the Minutes of the meeting of the Bid Evaluation Committee held on 18.06.2020, the technical bids of the petitioner and the respondent no. 4 were found to be acceptable. As per the tender summary reports prepared by the Bid Evaluation Committee, the technical evaluation summary details were uploaded in the E-procurement system of the Government of Assam on 18.06.2020 at 01-53 p.m. 19. 4 were found to be acceptable. As per the tender summary reports prepared by the Bid Evaluation Committee, the technical evaluation summary details were uploaded in the E-procurement system of the Government of Assam on 18.06.2020 at 01-53 p.m. 19. In terms of the NIT, the financial bids of the two bidders whose bids were found responsive at the technical bid evaluation stage, were opened accordingly by the tendering authority and were evaluated by the Bid Evaluation Committee. After evaluation, it was recorded that the bid value submitted by the petitioner for the subject-work was Rs. 1,49,92,737.20 whereas the bid value of the respondent no. 4 was Rs. 1,23,06,365.18. Having found both the technical bid and the financial bid of the respondent no. 4 responsive and his bid value lower than the petitioner, the respondent no. 4 was regarded as the lowest valid bidder, L1. The finance evaluation summary details were uploaded on 28.7.2020 at 02-42 p.m. 20. In the meantime on 14.07.2020, the petitioner approached this Court by way of the writ petition, W.P.(C) no. 2864/2020, assailing the decision of the tendering authority to accept the technical bid of the respondent no. 4 on the ground that the bid of the respondent no. 4 was non-compliant of the condition incorporated in Clause 4(1)(e) and Clause 12(A)(j) of the Bid Document. Referring to the prescribed format in respect of the completion/progress certificate, it was contended that the completion/progress certificate submitted by the respondent no. 4 was not in the prescribed format in terms of the NIT. The prescribed format for completion/progress certificate required incorporation of the name of scheme, work order no. and date, allotted amount, date of starting, up-to-date progress, if completed date of completion, as well as the remarks on the performance of the contractor. It was submitted that as the completion/progress certificate submitted by the respondent no. 4 was deficient of those particulars, the technical bid of the respondent no. 4 ought to have been rejected by the tendering authority. In that context, it was urged that submission of the completion/progress certificate in the prescribed format was an essential condition from which the tendering authority could not have deviated. By refuting the said contention, it was contended on behalf of the respondent no. 4 ought to have been rejected by the tendering authority. In that context, it was urged that submission of the completion/progress certificate in the prescribed format was an essential condition from which the tendering authority could not have deviated. By refuting the said contention, it was contended on behalf of the respondent no. 4 that the issue of acceptance or rejection of a bid should be looked at not only from the point of view of an unsuccessful bidder like the petitioner but also from the point of view of the tendering authority. It was contended that whether a term of the NIT was essential or not was a decision to be taken by the employer which should be respected. The decision of the Hon'ble Supreme Court of India in Central Coalfields Limited Vs. SLL-SML (Joint Venture Consortium), reported in (2016) 8 SCC 622 was referred to by both the parties and the decision of this Court rendered in the case of Pradip Dutta Vs. Airport Authority of India, reported in 2017 (1) GUT 562 was referred to on behalf of the respondent no. 4. 21. After consideration of the respective contentions advanced by the parties including that of the State respondents, the Court interfered with the minutes of the Bid Evaluation Committee dated 18.06.2020 and remanded the matter back, by the judgment and order dated 18.08.2020, to the Bid Evaluation Committee for a fresh decision on the aspect as to whether the submission of the completion/progress certificate by the respondent no. 4 in a format other than the prescribed bid format would be an acceptable deviation for the tendering authority or such deviation would be fatal so as to declare the bid of the respondent no. 4 to be non-responsive. It was further observed that in doing so, the propositions of law laid down in Central Coalfields (supra) and Pradip Dutta (supra) shall also be borne in mind by the tendering authority. The Court further directed the Bid Evaluation Committee to give the reasons for any decision that may be arrived at by them and while remanding the matter back for a fresh decision with the observations made above, the Court also interfered with the work order dated 08.07.2020 made in favour of the respondent no. 4. The tendering authority was directed to afford opportunities of hearing to the petitioner and the respondent no. 4. The tendering authority was directed to afford opportunities of hearing to the petitioner and the respondent no. 4 and the subject-work was made subject to such reasoned order to be passed. 22. It is noticed that in the previous round of litigation which was also at the instance of the petitioner, the petitioner raised the issues leading up to that point of time and the matter was remanded back, by the judgment and order dated 18.08.2020, to the Bid Evaluation Committee for a fresh decision oh the aspect as to whether the submission of the completion/progress certificate by the respondent no. 4 in a format other than the prescribed bid format would be an acceptable deviation for the tendering authority or such deviation would be fatal so as to declare the bid of the respondent no. 4 to be non-responsive. The Court further directed the Bid Evaluation Committee to give the reasons for any decision that may be arrived at by the Committee and the subject-work was made subject to such reasoned order to be passed. The judgment and order dated 18.08.2020 had since attained finality since no challenge was made to the observations and directions made therein by any of the parties, especially the petitioner. 23. Thus, it is to be kept in mind that the judgment and order dated 18.08.2020 of the coordinate bench had attained finality. It has been held in Sant Lal Gupta & Ors. Vs. Modern Cooperative Group Housing Society Limited & Ors., (2010) 13 SCC 336 , that a coordinate bench cannot comment upon the discretion exercised or judgment rendered by another coordinate bench of the same Court and it has been insisted that the decision of a coordinate bench must be followed. It has been held in Vikramjit Singh Vs. State of Madhya Pradesh, 1992 Supp (3) SCC 62, that a subsequent bench cannot comment on a judgment of a coordinate bench which had attained finality, much less sit in judgment as an appellate Court over its decision. In view of the above settled principle, it is not permissible for a coordinate bench to re-open a lis which had attained finality, at a later point of time and a subsequent bench is usually bound by the precedent of a coordinate bench. In view of the above settled principle, it is not permissible for a coordinate bench to re-open a lis which had attained finality, at a later point of time and a subsequent bench is usually bound by the precedent of a coordinate bench. Thus, the scope of judicial review for this Court in this writ petition has become narrower to that extent and cannot be expanded beyond the observations and directions made in the judgment and order dated 18.08.2020. As a result, the first issue to be decided is to whether the decision of the tendering authority to accept the submission of the completion/progress certificate by the respondent no. 4 in a form other than the prescribed bid format as an acceptable deviation is justified or not or whether such deviation ought to have been treated as fatal for declaring the bid of the respondent no. 4 as non-responsive. The co-related issue is as to whether the Bid Evaluation Committee had given reasons for such decision. 24. When the matter was remanded back to the tendering authority by judgment and order dated 18.08.2020, a meeting of the Bid Evaluation Committee was convened on 01.09.2020 and the petitioner and the respondent no. 4 were invited to attend the said meeting. Accordingly, both the petitioner and the respondent no. 4 attended the said meeting. The Bid Evaluation Meeting stated to have deliberated on all the aspects of the matter in that meeting and by recording its reasons decided not to change its earlier decision to award the subject work to the respondent no. 4 and had recommended to award the subject-work once again to the respondent no. 4. A Report to that effect was submitted by the Bid Evaluation Committee to the tendering authority i.e. the respondent no. 2 on 02.09.2020 and the same was accepted by the tendering authority by passing the impugned speaking order dated 04.09.2020. 25. The key findings, the recommendation of the Bid Evaluation Committee consisting of 10 (ten) nos. of members and the conclusion of the tendering authority, are reproduced in toto hereinbelow, as they are contained in the impugned speaking order dated 04.09.2020:- Findings of the Committee *********** The key findings of the Bid Evaluation Committee and the present scenario of the scheme in detail are stated below: a) Executive Engineer, Hailakandi W.R. Division informed that Nurul Islam Laskar (Respondent No. 4) has already deposited Rs. 26,93,500.00 as additional performance security money on 01.07.2020. Work order allotted on 08.07.2020. b) The respondent No. 4 (Nurul Islam Laskar) has submitted the physical progress report of the work done in Hailakandi W.R. Division along with the bid. In the format, "Total monetary value of the construction work" was reflected during the financial year (i.e. 2016-17, 2017-18 & 2018-19). Total monetary value itself is measure of work physically done in that division. During the meeting E.E., Hailakandi W.R. Division has submitted detail progress report as per format which reflects the same. So it is found that the submission of the completion certificate/upto date progress of the work done by the respondent No. 4 in a manner other than the prescribed bid format could be considered as acceptable deviation. c) As the scheme is already re-tendered and for public interest the scheme is to be implemented early due to emergent nature and though the document is not in proper format, the document of "Up to date progress of all the works allotted to the Bidder during the preceding three financial years" as submitted by the respondent No. 4 Nurul Islam Laskar is accepted so that minimum 2 bidder will remain for financial evaluation as such deviation could be treated as acceptable deviation. Recommendation of the Committee The committee has decided that the statement of the up to date progress of all the works allotted to the bidder during the last three Financial years submitted by Respondent No. 4 along with the technical bid could be accepted. The work done statement is verified with the detail statement of the work done submitted by the Executive Engineer and found correct. So the committee has decided not to alter/cancel the work order issued to Nurul Islam Laskar (Respondent No. 4) in the interest to early execution of the scheme. Conclusion Carefully perused the Judgment & Order of the Hon'ble Gauhati High Court dated 18.8.2020 passed in W.P.(C) 2864/2020. Also carefully perused the findings of the Bid Evaluation Committee meeting held on 1.9.2020 and recommendation thereof. After due deliberation of all the above facts, it has been decided not to alter/cancel the work order issued to Nurul Islam Laskar (Respondent No. 4) for early execution of the scheme in the interest of public service and thus, the claim of the petitioner could not be considered. 26. After due deliberation of all the above facts, it has been decided not to alter/cancel the work order issued to Nurul Islam Laskar (Respondent No. 4) for early execution of the scheme in the interest of public service and thus, the claim of the petitioner could not be considered. 26. As had been noted in the judgment and order dated 18.08.2020, in the completion/progress certificate submitted by the respondent no. 4 at the time of submission of his bid, an amount of Rs. 88,04,606/- was mentioned in respect of the financial year: 2016-2017 as the monetary value of construction works in Hailakandi Water Resources Division for the respondent no. 4. The said figure for him for the financial year: 2017-2018 was Rs. 7,61,29,194/- and it was nil for the financial year: 2018-2019. On summing up, the total figure came to Rs. 8,49,33,800/-. It has been contended on behalf of the petitioner that the said figure of Rs. 7,61,29,194/- as the total monetary value of construction work in Hailakandi Water Resources Division for the financial year: 2017-2018 was not correct because in the chart, annexed by the respondent no. 4 in his affidavit-in-opposition as an annexure, a different figure of Rs. 7,42,19,520/- had been mentioned; In the affidavit-in opposition filed by the respondent no. 2, it is averred that in the completion/progress certificate submitted by the respondent no. 4 at the time of submission of his bid as regards the progress report of the works executed earlier under the Hailakandi Water Resources Division, the total value of construction issued by the Executive Engineer of the Division during the financial years - 2016-2017, 2017-2018 and 2018-2019 - was mentioned. It is stated that though the said certificate was not in the format, but on the strength of the report of the respondent department regarding execution of works by the respondent no 4 a decision was taken that the respondent no. 4 fulfilled the requirement and his bid was accepted. It is admitted that the same Executive Engineer had issued the two completion/progress certificates in favour of the petitioner as well as of the respondent no. 4 but in case of respondent no. 4, the Executive Engineer did not issue the completion/progress certificate in the prescribed format. The tender committee on examining the records, found that the respondent no. It is admitted that the same Executive Engineer had issued the two completion/progress certificates in favour of the petitioner as well as of the respondent no. 4 but in case of respondent no. 4, the Executive Engineer did not issue the completion/progress certificate in the prescribed format. The tender committee on examining the records, found that the respondent no. 4 fulfilled the requirement and accordingly, his bid was accepted as he did not have any fault. In the affidavit-in-reply of the petitioner to the said affidavit in opposition filed by the respondent no. 2, the petitioner has asserted that the previous certificate issued by the Executive Engineer was not in proper format which issue would be required to be decided but the above assertions made by the respondent no. 2 in the affidavit were not specifically traversed by the petitioner. The prescribed format for completion/progress certificate required incorporation of the name of scheme, work order no. and date, allotted amount, date of starting, up-to-date progress, if completed date of completion, as well as the remarks on the performance of the contractor. It transpires from the aforesaid stand of the respondent no. 2 i.e. the Chief Engineer who is the tendering authority that records of the department were verified at the time of accepting the technical bid of the respondent no. 4 when his bid was found accompanied by a completion/progress certificate not in the prescribed format which was issued by an authority viz. Executive Engineer who is subordinate to the tendering authority. Notice can be taken of the fact that the contract works which were stated to be verified were under the same department, that is, the Water Resources Department where the tendering authority is also the higher authority. As the completion/progress certificate was to be issued under the hand of the concerned Executive Engineer in charge it cannot be said that the matter of submission of the completion/progress certificate in a format other than the prescribed format was a conscious one on the part of the respondent no. 4. That the matter of issuance of such completion/progress certificate was within the authority of the concerned Executive Engineer has already been admitted by the respondent no. 2 who is the Head of the department as well as the tendering authority. 27. 4. That the matter of issuance of such completion/progress certificate was within the authority of the concerned Executive Engineer has already been admitted by the respondent no. 2 who is the Head of the department as well as the tendering authority. 27. From a look at the Bid Document, it is found that Clause 26 thereof has provided for the examination of the bids and determination of responsiveness. The petitioner's contention herein is limited to the issue of responsiveness or otherwise of the technical bid of the respondent no. 4. Clause 26. I has laid down that during the detailed evaluation of ' Technical Bids', the employer would determine whether each bid (a) meets the eligibility criteria; (b) has been properly signed; (c) is accompanied by the required securities; and (d) substantially responsive to the requirement of the Bid Document The petitioner has not raised any issue with regard to matters pertaining (a), (b) and (c) above in the present writ petition. Thus, they are not aspects required to be dilated upon. In so far as (d) is concerned, though Clause 26. I speaks further about how the responsiveness of the financial bid is to be determined qua the conditions in the Bid Document it is silent about the manner of determination of responsiveness in respect of a Technical Bid. 28. Clause 29: Award Criteria mentions that the employer would award the contract to the bidder whose bid has been determined as substantially responsive. Clause 29 contains some other sub-clauses which appear to be of import. Clause 29. V has stipulated that before award of contract, the progress of existing work of successful bidder would be verified with the concerned Executive Engineer and the Employer has the discretionary power to award a contract on the basis of such progress report. Clause 29. VI has provided that the award of contract would be based on the performance report of existing/completed work against each contractor verified by the concerned Executive Engineer and in reference to Clause 29.III, which would be decisive and final. As per Clause 29. VIII, for allotment of work, the detail particulars of the bidder/bidders like past performance, on time execution of allotted work, on-going commitment, during the last 5 (five) years and financial soundness and turnover during last 5 (five) years etc. shall be taken into account. 29. As per Clause 29. VIII, for allotment of work, the detail particulars of the bidder/bidders like past performance, on time execution of allotted work, on-going commitment, during the last 5 (five) years and financial soundness and turnover during last 5 (five) years etc. shall be taken into account. 29. It transpires from the impugned order dated 04.09.2020 that during the meeting of the Bid Evaluation Committee held on 1.9.2020, the Executive Engineer, Hailakandi Water Resources Division had submitted a detailed progress report dated 31.08.2020 as per the prescribed format about which the Bid Evaluation Committee had recorded that the total monetary value of the construction works executed by the respondent no. 4 during the financial years i.e. 2016-2017, 2017-2018 and 2018-2019 in Hailakandi Water Resources Division was same, as had been reflected in the completion/progress certificate submitted by the respondent no. 4 at the time of submission of his bid. The Committee had observed that the total monetary value itself was the measure of works physically done in that division. A copy of the completion/progress certificate issued by the Executive Engineer, Hailakandi Water Resources Division in the prescribed format on 31.8.2020 is found appended at of the affidavit-in-op-position of the respondent no. 4. The said completion/progress certificate dated 31.08.2020 was in the format prescribed in the bid document. The Executive Engineer, Hailakandi Water Resources Division had submitted a statement of works done by the respondent no. 4 during the preceding three financial years giving details how the figures of Rs. 88,04,606/- for the financial year: 2016-2017 and Rs. 7,61,29,194/- for the financial year; 2017-2018 were arrived at while issuing the earlier completion/progress certificate dated 05.05.2020. 30. The decision of the Hon'ble Supreme Court of India in Central Coalfields Limited (supra) was relied upon before the learned Single Judge in the writ petition, W.P.(C) no. 2864/2020, by both the parties - the writ petitioner and the respondent no. 4--when the previous writ petition was taken up and the parties have reiterated their submissions also in the present writ petition by referring to the same paragraphs in Central Coalfields Limited (supra). 30.1. The following paragraphs from Central Coalfields Limited (supra) were relied on behalf of the petitioner:- "51. 4--when the previous writ petition was taken up and the parties have reiterated their submissions also in the present writ petition by referring to the same paragraphs in Central Coalfields Limited (supra). 30.1. The following paragraphs from Central Coalfields Limited (supra) were relied on behalf of the petitioner:- "51. Not only this, any decision taken by the employer in accepting or rejecting a particular bank guarantee in a format not prescribed by it could lead to (avoidable) litigation requiring the employer to justify the rejection or acceptance of each bank guarantee. This is hardly conducive to a smooth and hassle-free bidding process. 52. There is a wholesome principle that the Courts have been following for a very long time and which was articulated in Nazir Ahmad v. King Emperor AIR 1936 PC 253 namely: "Where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden." There is no valid reason to give up this salutary principle or not to apply it mutatis mutandis to bid documents. This principle deserves to be applied in contractual disputes, particularly in commercial contracts or bids leading up to commercial contracts, where there is stiff competition. It must follow from the application of the principle laid down in Nazir Ahmed that if the employer prescribes a particular format of the bank guarantee to, be furnished, then a bidder ought to submit the bank guarantee in that particular format only and not in any other format. However, as mentioned above, there is no inflexibility in this regard and an employer could deviate from the terms of the bid document but only within the parameters mentioned above." 30.2. On the other hand, the following paragraphs of from Central Coalfields Limited (supra) were referred on behalf of the respondent no. 4:- "47. The result of this discussion is that the issue of the acceptance or rejection of a bid or a bidder should be looked at not only from the point of view of the unsuccessful party but also from the point of view of the employer. As held in Ramana Dayaram Sherry the terms of the NIT cannot be ignored as being redundant or superfluous. They must be given a meaning and the necessary significance. As held in Ramana Dayaram Sherry the terms of the NIT cannot be ignored as being redundant or superfluous. They must be given a meaning and the necessary significance. As pointed out in Tata Cellular there must be judicial restraint in interfering with administrative action. Ordinarily, the soundness of the decision taken by the employer ought not to be questioned but the decision making process can certainly be subject to judicial review. The soundness of the decision may be questioned if it is irrational or mala fide or intended to favour someone or a decision "that no responsible authority acting reasonably and in accordance with relevant law could have reached" as held in Jagdish Mandal followed in Michigan Rubber. 48. Therefore, whether a term of the NIT is essential or not is a decision taken by the employer which should be respected. Even if the term is essential, the employer has the inherent authority to deviate from it provided the deviation is made applicable to all bidders and potential bidders as held in Ramana Dayaram Shetty. However, if the term is held by the employer to be ancillary or subsidiary, even that decision should be respected. The lawfulness of that decision can be questioned on very limited grounds, as mentioned in the various decisions discussed above, but the soundness of the decision cannot be questioned, otherwise this Court would be taking over the function of the tender issuing authority, which it cannot. 49. Again, looked at from the point of view of the employer if the Courts take over the decision-making function of the employer and make a distinction between essential and non-essential terms contrary to the intention of the employer and thereby re-write the arrangement, it could lead to all sorts of problems including the one that we are grappling with. For example, the GTC that we are concerned with specifically states in Clause 15.2 that "Any Bid not accompanied by an acceptable Bid Security/EMD shall be rejected by the employer as non-responsive." Surely, CCL ex facie intended this term to be mandatory, yet the High Court held that the bank guarantee in a format not prescribed by it ought to be accepted since that requirement was a nonessential term of the GTC. From the point of view of CCL the GTC has been impermissibly re-written by the High Court." 31. From the point of view of CCL the GTC has been impermissibly re-written by the High Court." 31. After a survey of a number of decisions on the issue as to when and how a term in the tender document is to be interpreted as an essential condition or an ancillary condition including the decision in Jagdish Mandal (supra), the Hon'ble Supreme Court in Central Coalfields Limited (supra) has held that the issue of the acceptance or rejection of a bid or a bidder should be looked at not only from the point of view of the unsuccessful party but also from the point of view of the employer. The terms of the NIT cannot be ignored as being redundant or superfluous and they must be given a meaning and the necessary significance. Referring to the celebrated decision in Tata Cellular Vs. Union of India, (1994) 6 SCC 651 , it has been reiterated that there must be judicial restraint in interfering with administrative action. Ordinarily, the soundness of the decision taken by the employer ought not to be questioned but the decision-making process can certainly be subject to judicial review. The soundness of the decision may be questioned if it is irrational or mala fide or intended to favour someone or a decision that no responsible authority acting reasonably and in accordance with relevant law could have reached. It has been held that whether a term of NIT is essential or not is a decision taken by the employer which should be respected. Even if a term is essential, the employer has the inherent authority to deviate from it provided the deviation is made applicable to all bidders and potential bidders. However, if the term is held by the employer to be ancillary or subsidiary, even that decision should be respected. The lawfulness of that decision can be questioned on very limited grounds, but the soundness of the decision cannot be questioned. Otherwise the same would amount to taking over the function of the tender issuing authority by the Court, which it cannot. Looking at from the point of view of the employer if the courts take over the decision-making function of the employer and make a distinction between essential and non-essential terms contrary to the intention of the employer and thereby rewrite the arrangement, it could lead to all sorts of problems. 32. Looking at from the point of view of the employer if the courts take over the decision-making function of the employer and make a distinction between essential and non-essential terms contrary to the intention of the employer and thereby rewrite the arrangement, it could lead to all sorts of problems. 32. The following observations made in the decision in Pradip Dutta Vs. Airport Authority of India & Ors., reported in 2017 (1) GLT 562, were also relied on behalf of the respondent no. 4:- "The concept of curable defects and incurable defects can be examined from the point of view that as to whether the tender had the specified requirement at the time of submission of the tender to which the relevant document was required to have been submitted. If on an examination of the matter, it can be construed that the said requirement which the document depicts, as the case may was pre-existing at the time of submission of document, such non-submission of the document it can be concluded to be a curable defect. If on the other hand, the requirement that the document depicts did not exist at the time when the tendered bid was submitted and such requirement was subsequently obtained such a defect would have been construed to be an incurable defect." 33. In Galaxy Transport Agencies (supra), it has been reiterated by the Hon'ble Supreme Court by referring to a number of earlier decisions including the decision in Jagdish Mandal (supra) that the authority who has authored the tender document, is the best person to understand and appreciate its requirements and interpret its documents. The Constitutional Court must defer to the said understanding and appreciation of the tender document and if two interpretations are possible then the interpretation of the author must be respected. In the competitive commercial field the technical bids pursuant to the notice inviting tenders are scrutinized by the technical experts in order to ensure objectivity. A bidder's expertise and technical capability and capacity are assessed by the experts. It has, at the same time, been emphasized that it does not mean that the tenders will escape scrutiny of judicial review. Exercise of power of judicial review would be called for if the approach is arbitrary or mala fide or procedure adopted is meant to favour one. The decision making process should clearly show that the said maladies are kept at bay. Exercise of power of judicial review would be called for if the approach is arbitrary or mala fide or procedure adopted is meant to favour one. The decision making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the Court should follow the principle of restraint. Technical evaluation or comparison by the Court would be impermissible. 34. It needs reiteration that the bid value submitted by the petitioner for the subject-work was Rs. 1,49,92,737.20 whereas the bid value of the respondent no. 4 was Rs. 1,23,06,365.18. Thus, the price difference between the financial bids of the respondent no. 4 and the petitioner was Rs. 26,86,372.02 (Rs. 1,49,92,737.20 less Rs. 1,23,06,365.18). The approximate value of the subject-work, as per the Bid Document, was Rs. 1,49,99,800.88. Clause 32 (ii) of the Bid Document provided that if the bid value of a successful bidder was less than that of the estimated/package value, then 100% of the Difference Cost (i.e. the estimated/Package values less the bid value) was to be submitted as additional security deposit by the successful bidder. The respondent authorities had prior to the award of the subject-work on 08.07.2020, had obtained additional performance security money of Rs. 26,93,500.00 on 01.07.2020 from the respondent no. 4. 35. The document at page - 119 of the petition papers, to which the learned Additional Advocate General has referred to, is a Single Work Done Certificate issued on 5.5.2020 by the respondent no. 3 which the respondent no. 4 had submitted with his bid. By the Single Work Done Certificate, it was certified that the respondent no. 4 had successfully completed 100% of a contract work viz. 'Immediate measures to dyke along L/B of river Katakhal from Ratanpurghat to Mohanpur for 2017-18 under SDRF (single package)' of total value Rs. 2,54,71,020/- granted to him vide a work order dated 19.12.2018 to the full satisfaction of the respondent authorities within the stipulated period. Reference has been made to the certificate to urge and bring home the point that the respondent no. 2,54,71,020/- granted to him vide a work order dated 19.12.2018 to the full satisfaction of the respondent authorities within the stipulated period. Reference has been made to the certificate to urge and bring home the point that the respondent no. 4 had the qualification, eligibility, experience and capacity to execute the subject-work and all those factors were taken into consideration by the Technical Bid Evaluation Committee at the time of acceptance of the technical bid and the respondent authorities in the respondent Water Resources Department. On perusal of the said certificate, the point that is sought to be urged by the State respondents cannot be discarded to be as one without substance. 36. The decision in Central Coalfields Limited (supra) was rendered in the face of specific clauses viz. Clause 3, Clause 11 and Clause 15.2 in the General Terms and Conditions (GTC). Clause 3 of the GTC inter alia prescribed that the earnest money deposit in the form of irrevocable bank guarantee (BG) from any scheduled bank had to be deposited in the format given in the bid document. Clause 11 and Clause 15.2 were to the effect that if the any bid was not accompanied by an acceptable bid security/earnest money deposit the same shall be rejected as non-responsive. The BG provided by the respondent-bidder therein was not in the prescribed pro forma but in another format in respect of some other contract provided in the GTC. It was in that context the Hon'ble Supreme Court had held that it was an essential term and non-compliance would entail rejection of the bid when the tendering authority had held that it was an essential condition. In Phanindra Kumar Baishya (supra) also, the tender of the respondent therein was rejected as incomplete on the ground that the affidavit submitted with the tender was not as per Annexure-'C format of the tender document whereas the tender conditions clearly required that tenderers were to compulsorily submit affidavit as per Annexure-'C' of the tender document and failure to submit the affidavit as prescribed along with the tender would invite summary rejection. Following the ratio in Central Coalfields Limited (supra), the decision in Phanindra Kumar Baishya (supra) was rendered. 37. Following the ratio in Central Coalfields Limited (supra), the decision in Phanindra Kumar Baishya (supra) was rendered. 37. In the case in hand, though the Clause 4(1)(e) and Clause 12(A)(j) of the Bid Document required that the completion/progress certificate was required to be submitted in the prescribed format as given in the Bid Document, but no clause from the Bid Document has been brought to the notice to imply that in the event of failure to submit the completion/progress certificate by a bidder in the prescribe format would entail disqualification of his technical bid. The Bid Document in Clause 4.II.a(i) had laid down as a qualifying criteria that the bidder was to have cumulative (audited/unaudited) annual turnover (maximum of 5 preceding Financial Years prior to the Financial Year on which the tender was called for) which should be equal to the Package value. Clause 4.II.a(iii) had laid down that in case of Group value/package value was less than 3.0 crores, the bidder should have atleast 1 (one) single work order of value not less than 5% of the package value in the Water Resources Department and Clause 4.II.a.(vi) required the bidder to submit the completion report or progress report of completion of requisite volume of work from the Executive Engineer concerned in case of criteria mentioned in Clause 4.II.a.(iii). Clause 8.II had stipulated that failure to comply with the requirements of the Bid Document shall be at the bidder's own risk and the bids which were not substantially responsive to the requirements of the Bid Document shall be rejected. 38. It has also been submitted on behalf of the petitioner alleging mala fide that there had been delayed uploading of the evaluation details in the concerned website. Clause 31 of the Bid Document has laid down that the Bidder whose bid had been accepted would be notified of the award generally through e-mail/whatsapp/SMS or letter by the employer. The notification of award would constitute the formation of the contract, subject only to the furnishing of a performance security in accordance with the provision. The successful bidder would have to enter into an agreement with the employer and the successful bidder would furnish performance security and sign the agreement with 7 (seven) days following the notification of the award. The notification of award would constitute the formation of the contract, subject only to the furnishing of a performance security in accordance with the provision. The successful bidder would have to enter into an agreement with the employer and the successful bidder would furnish performance security and sign the agreement with 7 (seven) days following the notification of the award. Upon the furnishing by the successful bidder of the performance security, the employer would promptly notify/inform the other bidders that their bids had been unsuccessful. Within 7 (seven) days of receipt of the Letter of Acceptance, the successful bidder was to deliver to the concerned Executive Engineer a performance security in any of the forms prescribed therein. If the bid value of the successful bidder was less than that of the estimated/package value, then 100% of the Difference Cost (the estimated cost less the bid value) had to be deposited as additional security deposit by the successful bidder. It is mentioned that a contractor needs to provide justification supported by analysis rate, for rate provided below estimated rate. The employer had reserved the right to accept or reject such justification and analysis of rate and decision of the employer would be final and binding on the bidder. 39. It has been stated by the respondent no. 2 in its affidavit-in-opposition that the Technical bids were opened on the stipulated date, 07.05.2020 at 14-05 Hrs. and the technical document of the bidders were downloaded to check and to verify the authenticity of the documents. After examination of all the tender documents for the proposed subject-work on 18.06.2020 at 01-52 Hrs., the Technical Bid Summary Minute was uploaded on the web portal and accordingly, the financial bids/comparative statement (CS) was generated at 01-55 Hrs. from where the tender inviting authority got the bid ranks. Thereafter, the justification for the bid rate quotation was sought from the L1 (the lowest successful) bidder. After obtaining that, the file containing the relevant documents was forwarded to the Additional Chief Engineer, Cachar & Hills, Water Resources Department, Silchar for taking steps towards issuance of work order to the successful bidder after submission of additional performance security from the L1 bidder. It is stated that it was after all such formalities, the concerned Additional Chief Engineer issued the work order in favour of the L1 bidder on 08.07.2020. It is stated that it was after all such formalities, the concerned Additional Chief Engineer issued the work order in favour of the L1 bidder on 08.07.2020. After completion of the above process, the Additional Chief Engineer, Cachar & Hills communicated the matter to the tender inviting authority on 27.07.2020 and on 28.07.2020, the financial evaluation summary and the award of contract was uploaded on the portal. It has been stressed that the entire process had proceeded fairly and in usual manner following the procedure. 40. In response to the stand of the respondent no. 2 with regard to uploading of the financial summary details in the website on 28.07.2020, the petitioner had chosen to offer no comment in his affidavit-in-reply. It is settled proposition that if an averment made in the pleadings of a party is not controverted and traversed by the other party even after getting the opportunity, then such averment should be presumed to be have been admitted. In the case in hand, the petitioner other than bald assertion, has not controverted and traversed the stand of the respondent no. 2 as regards the events leading to uploading of the financial evaluation summary on 28.7.2020. Thus, for the said reason, there appears to be no necessity for further dilation on the said aspect. It may be mentioned the cost of repetition that such a dilation is also not necessary because the scope of judicial review in this round of litigation is limited only to the aspects for which the matter was remanded back with the directions made in the judgment and order dated 18.08.2020 and this issue was alive when the previous writ petition filed at the instance of the petitioner was adjudicated. The discussion above is made solely to see as to whether contention regarding mala fide merited any consideration. Similarly, the contention regarding the extent of the progress of subjectwork on one date or on another date requires no dilation in this writ petition. 41. It is apposite at this stage to refer to two of the decisions of the Hon'ble Supreme Court of India in the matter of awarding contracts. In Raunaq International Limited Vs. I. V.R. Construction Ltd. & Ors., (1999) 1 SCC 492 , the Hon'ble Supreme Court has observed as follows:- "9. 41. It is apposite at this stage to refer to two of the decisions of the Hon'ble Supreme Court of India in the matter of awarding contracts. In Raunaq International Limited Vs. I. V.R. Construction Ltd. & Ors., (1999) 1 SCC 492 , the Hon'ble Supreme Court has observed as follows:- "9. The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are of paramount importance are commercial considerations. These would be: (1) the price at which the other side is willing to do the work; (2) whether the goods or services offered are of the requisite specifications; (3) whether the person tendering has the ability to deliver the goods or services as per specifications. When large works contracts involving engagement of substantial manpower or requiring specific skills are to be offered, the financial ability of the tenderer to fulfil the requirements of the job is also important; (4) the ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality; (5) past experience of the tenderer, and whether he has successfully completed similar work earlier; (6) time which will be taken to deliver the goods or services; and often (7) the ability of the tenderer to take follow up action, rectify defects or to give post contract services. Even when the State or a public body enters into a commercial transaction, considerations which would prevail in its decision to award the contract to a given party would be the same. However, because the State or a public body or an agency of the State enters into such a contract, there could be, in a given case, an element of public law or public interest involved even in such a commercial transaction. 10. What are these elements of public interest? (1) Public money would be expended for the purposes of the contract; (2) The goods or services which are being commissioned could be for a public purpose, such as, construction of roads, public buildings, power plants or other public utilities. (3) The public would be directly interested in the timely fulfilment of the contract so that the services become available to the public expeditiously. (3) The public would be directly interested in the timely fulfilment of the contract so that the services become available to the public expeditiously. (4) The public would also be interested in the quality of the work undertaken or goods supplied by the tenderer. Poor quality of work or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times in redoing the entire work - thus involving larger outlays or public money and delaying the availability of services, facilities or goods, e.g. a delay in commissioning a power project, as in the present case, could lead to power shortages, retardation of industrial development, hardship to the general public and substantial cost escalation. 11. When a writ petition is filed in the High court challenging the award of a contract by a public authority or the State, the court must be satisfied that there is some element of public interest involved in entertaining such a petition. If, for example, the dispute is purely between two tenderers, the court must be very careful to see if there is any element of public interest involved in the litigation. A mere difference in the prices offered by the two tenderers may or may not be decisive in deciding whether any public interest is involved in intervening in such a commercial transaction. It is important to bear in mind that by court intervention, the proposed project may be considerably delayed thus escalating the cost far more than any saving which the court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. Therefore, unless the court is satisfied that there is a substantial amount of public interest, or the transaction is entered into mala fide, the court should not intervene under Article 226 in disputes between two rival tenderers." 42. In Jagdish Mandal Vs. State of Orissa, reported in (2007) 14 SCC 517 , the Hon'ble Supreme Court has held as under:- "22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made 'lawfully' and not to check whether choice or decision is 'sound'. State of Orissa, reported in (2007) 14 SCC 517 , the Hon'ble Supreme Court has held as under:- "22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made 'lawfully' and not to check whether choice or decision is 'sound'. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. 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.' (ii) Whether public interest is affected. If the answers are in the negative, there should be no interference under Article 226....." 43. 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.' (ii) Whether public interest is affected. If the answers are in the negative, there should be no interference under Article 226....." 43. From the above discussions with regard to the terms and conditions incorporated in the Bid Document, it has emerged that the purport and object behind calling for a completion/progress certificate was to facilitate the Bid Evaluation Committee to assess the qualification, eligibility, experience and capacity of the bidder and to arrive at an conscious decision whether the bid of a bidder can be accepted or not. The terms and conditions of the Bid Document did not prescribe automatic disqualification of a bid if the same was not accompanied by the completion/progress certificate in the prescribed format The Bid Evaluation Committee and the tendering authority had the discretion to examine and assess as to whether a bid was substantially responsive to the requirements of the Bid Document and the subject-work or not. If it is found on the basis of such examination and assessment that the bidder had substantially complied with the requirements for execution of the subjectwork, the Bid Evaluation Committee/tendering authority had the choice to award the subjectwork to such a bidder. Taking all these aspects into consideration, it cannot be said that the recommendations of the Bid Evaluation Committee which was made on the basis of materials available before it and the decision of the tendering authority arrived at on the basis of such recommendations, as contained in the impugned Speaking Order dated 04.09.2020, not to alter the award of the subject-work from the respondent no. 4 was arbitrary, unjustified and without any reason. The Court is of the considered view that the decision to treat non-submission of the completion/progress certificate in a format other than the prescribed format as acceptable variation was based upon considerations of the relevant aspects contained in the Bid Document and in compliance of the directions contained in the judgment and order dated 18.08.2020. Moreover, the issue regarding acceptable deviation was found considered by the Bid Evaluation Committee consisting of 10 (ten) experts from the concerned field. Moreover, the issue regarding acceptable deviation was found considered by the Bid Evaluation Committee consisting of 10 (ten) experts from the concerned field. When a decision is taken by a committee of experts who had the necessary expertise and domain knowledge in the field, upon due consideration of requirements of the Bid Document and the bids on their own merits and if such a committee of experts had found that the bid of successful bidder was substantially responsive the conditions laid down in the Bid Document, a Court exercising the power of judicial review under Article 226 of the Constitution of India shall not ordinarily interfere. For the case in hand, this Court has found the answers to the two questions posed in Jagdish Mandal (supra) in the negative. Similarly, on application of the parameters laid down in Raunaq International Limited (supra) to the present case, no element of public interest is found involved for interference at a stage when about one-third of the subject-work had been completed at the time when this writ petition was taken up for adjudication. 44. In the light of the above discussion, this Court finds the writ petition is devoid of merit and consequently, the same is dismissed. There shall, however, be no order as to cost.