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2025 DIGILAW 1225 (GAU)

Indira Enterprise v. State of Assam

2025-08-01

DEVASHIS BARUAH

body2025
JUDGMENT : DEVASHIS BARUAH, J. Heard Mr. A. K. Baruah, the learned counsel appearing on behalf of the petitioners and Mr. B. Gogoi, the learned Standing counsel appearing on behalf of the respondent Nos. 1, 2, 3 and 4. I have also heard Mr. K. N. Choudhury, the learned Senior counsel assisted by Mr. N. Gautam, the learned counsel appearing on behalf of the respondent No.5. 2. The petitioners herein have approached this Court challenging the Minutes of the Meeting dated 18.12.2024 whereby the Tender Evaluation Committee had decided to issue the work order in favour of the respondent No.5. 3. For the purpose of deciding the said legality of the actions, this Court finds it pertinent to take note of the brief facts which led to the filing of the instant writ petition. 4. The materials on record show that the respondent No.3 had issued a Notice Inviting Tender dated 27.11.2024 for outsourcing of Patient Dietary Services for Tezpur Medical College Hospital, Tezpur to experienced contractors. For the purpose of the instant dispute, Clause-1 which pertains to the Award Criteria is relevant and the same is reproduced herein under: “ 1. Award Criteria: This service is outsourced for providing good, healthy and nutritious food to the patient essential for fast recovery. Hence, there can be no compromise in quality of service. Being L1 does not confer the right for award of contract. To avoid poor/deficient service in abnormally low rates will not be considered. Therefore, a reasonable rate with quality service is mandatory and in the event of abnormally low bids, authority’s preconceived notion will be final and no written clarification will be entertained. However, the price quoted by the bidder shall not in any case exceed unit price Rs.160/- (exclusive GST). The Institute will award the contract to the successful bidder whose bid has been determined as the lowest bid, provided the bidder quotes its rate within its limit as prescribed above. In case the lowest rates quoted by two bidders being same, the bidder having more scores in technical bid will be considered for the contract.” 5. The petitioners as well as the respondent No.5 were both eligible. However, the petitioners quoted Rs.144/- per patient per day without GST whereas the respondent No.5 quoted Rs.111/- per patient per day without GST. In case the lowest rates quoted by two bidders being same, the bidder having more scores in technical bid will be considered for the contract.” 5. The petitioners as well as the respondent No.5 were both eligible. However, the petitioners quoted Rs.144/- per patient per day without GST whereas the respondent No.5 quoted Rs.111/- per patient per day without GST. The case of the petitioners herein is that the respondent authorities while arriving at the decision in the Minutes of the Meeting held on 18.12.2024, did not take into consideration the award criteria and as such, there is a requirement for exercising the powers of judicial review by this Court. 6. It is relevant to take note of that this Court vide an order dated 20.12.2024 issued notice making it returnable on 09.01.2025 and in order to protect the interests of the parties directed that till 09.01.2025, the respondent authorities shall not further proceed with the settlement of the contract pursuant to the NIT dated 27.11.2014. 7. The record reveals that the respondent No.3 had filed an affidavit-in- opposition. In the said affidavit-in-opposition and more particularly at paragraph No.3, it was categorically mentioned that the tendering authority through an internal assessment decided an estimate rate prior to floating of the tender at which the diet supplier can provide good, healthy and nutritious food to the patients as prescribed. The rate so fixed was found to be Rs.138/- (for one year) and Rs.146/- (for the subsequent year) as per assessment of the Statistician cum Lecturer, Department of Community Medical, (SPM), Tezpur Medical College. It was also mentioned that the rate quoted by the petitioner at Rs.144/- (without GST) was found in compliance with the price limit prescribed in the tender document. Further to that, it was stated that the price limit was set between Rs.138/- which was the estimated rate applicable for the first year and Rs.160/- which was the maximum limit (both without GST). 8. It was further stated in the said paragraph that the respondent No.5 offered a lower price than the estimated cost of the tender. But the Tender Evaluation Committee accepted the bid of the respondent No.5 citing rational justifications for the same. It was further mentioned that the Tender Evaluation Committee accepted the rate offered by the respondent No.5. 8. It was further stated in the said paragraph that the respondent No.5 offered a lower price than the estimated cost of the tender. But the Tender Evaluation Committee accepted the bid of the respondent No.5 citing rational justifications for the same. It was further mentioned that the Tender Evaluation Committee accepted the rate offered by the respondent No.5. with the perception that the respondent No.5 who is the existing contractor doing/executing similar works had quoted a rate and that such a rate may truly represent the workable rate and the estimated cost put to tender may be on the higher side. However, since the estimated rate (pre-conceived rate) factor as set forth in the tender document was ignored by the Tender Evaluation Committee on the ground that the Committee did not accept the confidential preconceived price index provided by the Tender Inviting Authority, its value does not diminish as it was based upon the existing price index of the market and the value of the present supply of diet which must be followed by the L1 bidder. It was further mentioned in the said affidavit- in-opposition that L1 bidder was recommended for award of the contract by the Committee to lower the financial burden of the Government Exchequer. Additionally, it was stated that the Tender Evaluation Committee further recommended the Tender Inviting Authority to give the bid to L2 bidder if the L1 bidder fails to maintain the standard of dietary services as per the tender document. 9. It is very pertinent however to take note of that the justification provided in the affidavit filed by the respondent No.3 is not seen in the justification so given by the Tender Evaluation Committee in the Minutes of the Meeting dated 18.12.2024. The Minutes of the Meeting dated 18.12.2024 have been enclosed as a Annexure-A to the affidavit-in- opposition filed by the respondent No.3. This Court finds it pertinent to reproduce the reasons mentioned in the Minutes of the Meeting dated 18.12.2024 which have been impugned in the instant proceedings. The Minutes of the Meeting dated 18.12.2024 have been enclosed as a Annexure-A to the affidavit-in- opposition filed by the respondent No.3. This Court finds it pertinent to reproduce the reasons mentioned in the Minutes of the Meeting dated 18.12.2024 which have been impugned in the instant proceedings. The contents of the said Minutes are reproduced herein under: “ Justification for offer of bid to L1 bidder : Although the committee did not accept the confidential pre conceived price index provided by the TIA (Copy Enclosed) its value does not diminish as it was based upon the existing price index of market and value of present supply of diet, which must be followed by the L1 bidder. The L1 bidder was recommended for award of contract by the committee to lower the financial burden of the Government exchequer. However, the committee recommends the TIA to give the bid to L2 bidder on account of failure by L1 bidder to maintain the standard of dietary services as per tender document. 10. In the backdrop of the above, this Court has duly heard Mr. A.K. Baruah, the learned counsel appearing on behalf of the petitioners as well as Mr. B. Gogoi, the learned Standing counsel appearing on behalf of the respondent Nos. 1 to 4. I have also heard the Mr. K. N. Choudhury, the learned Senior counsel appearing on behalf of the respondent No.5. 11. In order to decide the question as to whether the decision taken in the Minutes of the Meeting dated 18.12.2024 is required to be interfered with, this Court finds it relevant to take note of the Award Criteria as set out in the detailed Notice Inviting Tender which have been quoted in the previous segments of the instant judgment. 12. From a perusal of the said Award Criteria, it would be seen that the reason why the respondent authorities have outsourced the contract for providing of cooked diets for indoor patients is that the experienced contractors would provide good, healthy and nutritious food to the patient which is very essential for recovery. It further stipulates that under no circumstances, there can be compromise in quality of the service and as such, even an L1 bidder would not have a right for award of the contract. It further stipulates that under no circumstances, there can be compromise in quality of the service and as such, even an L1 bidder would not have a right for award of the contract. The said clause pertaining to Award Criteria further stipulates that a reasonable rate with quality service is mandatory and in the event of abnormally lower rate bids, the Authority's preconceived notion would be final and no written clarification would be entertained. Further to that, it also stipulated that the price quoted by the bidder shall not in any case exceed unit price Rs.160/- (exclusive GST). In this context, it is pertinent to observe that in the affidavit-in-opposition so filed by the respondent No.3, it is specifically mentioned that prior to the issuance of the Notice Inviting Tender, the Tender Inviting Authority had accepted Rs.138/- without GST as the preconceived rate. 13. It is further relevant to observe that the respondent No.3 though tried to provide various justification to the decision taken in the Minutes of the Meeting dated 18.12.2024 to award the contract in favour of the respondent No. 5 but a perusal of the Minutes as quoted herein above would show that the Tender Evaluation Committee did not disregard that the preconceived rate so fixed was exorbitant. Rather, the Tender Evaluation Committee observed in the Minutes of the Meeting that the preconceived rate was based upon existing price index of the market and value of the present supply of the diet. The only reason why the respondent No.5 should be awarded the contract is that it could impose less financial burden upon the Government exchequer. It is further seen from the very Minutes that the Tender Evaluation Committee were not certain that the respondent No.5 would be in a position to perform his contract at the said rate by maintaining the standard and as such, observed that if the respondent No.5 fail to maintain the standard of dietary service as per the tender document, the petitioners be awarded the said contract. 14. 14. Therefore, from the said decision so taken in the Minutes of the Meeting dated 18.12.2024, it appears that the only reason for awarding the contract to the respondent No.5 is only for lessening the financial burden of the Government exchequer in spite of the fact that the Award Criteria as quoted herein above categorically mentioned about the preconceived notion and being L1 does not confer the right for award of the contract. In the opinion of this Court, the decision so arrived at by the Tender Evaluation Committee in the Minutes of the Meeting dated 18.12.2024 is therefore contrary to the Award Criteria as set out in the Notice Inviting Tender. The action therefore is arbitrary, unreasonable and irrational and violates the mandate of Article 14 of the Constitution. 15. Besides the above, this Court is also of the opinion that the basic reason for outsourcing food supply to the patient is to provide good, healthy and nutritious food for recovery of patients. Therefore, the prime consideration is to provide quality and nutritious food to the patients. The financial burden is de-prioritized keeping the health of the patients at the focal point. 16. This Court had also during the course of the hearing enquired as to on what basis the respondent No.3 had stated that the respondent No.5 is performing similar supply. Nothing substantial could be produced. However, it is stated at the Bar that the petitioners are presently supplying food to the patients. 17. Under such circumstances, the instant writ petition stands disposed of with the following observations and directions: (I) The Minutes of the Meeting dated 18.12.2024 is set aside and quashed. (II) This Court grants liberty to the respondent authorities to decide afresh on the basis of the materials available as to whom to award the contract keeping in mind the Award Criteria and also that providing good, healthy and nutritious food to the patient as the foremost consideration. (III) This Court further observes that the observations made hereinabove shall not preclude the respondent authorities to carry out negotiations with the petitioners and the respondent No.5, if so permissible as per the mandate of the NIT. (IV) Interim order passed on 20.12.2024 stands vacated.