The Calcutta High Court recently comprising of a bench of Justice Sabyasachi Bhattacharya observed that pre-eligibility criterion cannot be satisfied prior to participation in the tender bid. (Devsaria Iron & Steel Co. Private Limited and another Vs. The State of West Bengal and others)
The petition arose from discrepancies faced by the petitioner in matter related to the tender bidding process.
Facts of the Case
The petitioners have challenged an e-auction floated by the respondent authorities, through respondent no.4, on February 12, 2021 for sale of decommissioned plant and machinery and items of COGP/DPL and Unit-6, Durgapur Projects Limited. The grievance of the petitioners revolved around alterations in the terms of the original auction catalogue on February 10, 2021, whereas the last date for submitting pre-bid security of Rs.1.5 crore was February 11, 2021. It was also noted for the petitioners that the said alterations, modifying the post-bid conditions and relaxing those, were substantial in nature. Since the petitioners could not participate in the auction sale due to the prohibitive post-bid conditions, it adversely affected the interests of the petitioners. If the alterations were made sufficiently before and/or contained in the original conditions, the petitioners would have participated in the auction.
Contention of the Parties
Learned counsel for the petitioners submits that the respondentauthorities violated the principle of fair play, which governs all tender processes, particularly those floated by public authorities
It was argued through the case law of Meerut Development Authority and Ors. Vs. Association of Management Studies and Ors., reported at (2009) 6 SCC 171 that, by way of judicial review, courts can examine whether the decision-making process was reasonable, rational, not arbitrary and violative of Article 14 of the Constitution.
Learned counsel for respondent no.3 submitted that only the participants in the tender process could have been affected by an alteration in the post-bid conditions. 14. The respondents contended that there is no question of the eligibility to participate being affected by the alterations-in-question. As such, nothing prevented the petitioner from participating in the tender and taking an inspection of the concerned site.
Courts Observation & Judgment
The bench taking note of the Case of Meerut Development (supra) observed that although it was laid down in Meerut Development (supra) that the methods to be adopted for disposal of public property must be fair and transparent, providing an opportunity to all the interested persons to participate in the process, in the present case there was no lack of transparency in the methods in view of sufficient opportunity of inspection and prior queries having been provided. The petitioners willingly chose not to participate in the tender. The determinant standards for all who participated were the same, as per the conditions as those stood prior to the impugned alterations. The material alterations, if any, merely pertained to relaxation of post-bid terms for the successful bidder and did not touch the eligibility to participate in the tender at all.
.
There arose no question of any pre-eligibility criterion being satisfied prior to participation in the bid. Only participants in the tender could invoke Article 14 of the Constitution of India against successful bidders, if at all, since the other participants in the tender process were on a similar footing as the successful bidder, to whom the post-bid relaxation applied.
The court took the view that the relaxation of post-bid conditions is well within the discretion of the tender-issuing authority. Thus, in the absence of any arbitrariness, mala fides or violation of Article 14 of the Constitution of India and/or any prima facie material to show that the tender terms were altered in a tailor-made manner to suit the convenience of any particular person, even adhering to the principles laid down in the judgments cited by the petitioners, there was no scope for judicial interference in the impugned e-auction.
The court dismissing the Petition remarked, “Thus, the ratio laid down in the judgments cited by the petitioners is not applicable to the present case at all. In view of the above observations, there is no occasion for judicial interference under Article 226 of the Constitution of India to interdict and/or set aside the tender impugned in the present writ petition.”
Read Judgment @Latestlaws.com
Picture Source :
